II. Legal problems in time of peace
The mere act of placing national armed forces under the command of a foreign military commander is productive of relatively few legal problems. The responsibilities of the international commander and of his national subordinate must be distinguished. It is usually stipulated that only operational control of the forces will pass to the international commander, while the forces remain subject to national administration and jurisdiction. This distinction may be further amplified in the establishment of the chain of command and channels of communication. If the state furnishing the larger number of troops is to furnish supplies and facilities to a national contingent, the agreement must specify the conditions under which the logistical support is to be furnished and reimbursement made. Agreements of this nature in essence define the relationships of the two forces.
Far more complex and difficult legal questions are presented if arrangements are to be made for the presence in a foreign state of national contingents of an international command. Agreement must be reached between the ‘sending state’ and ‘receiving state’ concerning the status of the forces of the former in the territory of the latter, since the international law applicable to such forces is neither sufficiently definite nor sufficiently detailed. The parties to the North Atlantic Treaty have concluded such an agreement, but it has not yet come into force.115 It will require significant changes in the domestic legislation of the N.A.T.O. countries.116 Similar status of forces provisions are to be found in the Treaty Constituting the E.D.C. and its Protocols117 and in the Contractual Agreements with Germany, especially the Convention on the Rights and Obligations of the Forces.118 Upon the completion of the defence structure for Europe and the North Atlantic, three regimes will thus be applicable to the forces—one for E.D.C., another for N.A.T.O., and a third for Germany. The E.D.C. agreements will govern the status of its forces as between E.D.C. members, while it is probable that the N.A.T.O. Status of Forces Agreement will be applied to non-members of the E.D.C. within N.A.T.O. and to the problems which arise in connexion with the stationing of E.D.C. troops in non-E.D.C. territory and non-E.D.C. troops in E.D.C. territory. Some adjustment of either the E.D.C. agreements or the N.A.T.O. Status Agreement will be necessary in order to give the E.D.C. a status analogous to that of a ‘sending state’ or ‘receiving state’119 within N.A.T.O. As Germany is not a member of N.A.T.O., United States and British troops will continue to benefit from the Contractual Agreements, while, with the exception of certain transitional provisions, French troops in Germany will be subject to the E.D.C. regime.120
Recent agreements concerning the status of forces, of which the N.A.T.O. Agreement is typical,121 differentiate three classes of persons: the members of the forces, the members ofthe ‘civilian component’, who are civilians employed by the armed forces, and dependents who are close relatives of persons in the foregoing categories.122 Varying privileges, immunities, and responsibilities attach to the three groups. The vexing jurisdictional question which exists when crimes are
Members of the Armed Forces of the Brussels Treaty Powers, 21 December 1949, Misc. No. 1 (1950). See notes in Modern Law Review, 16 (1953), p. 59, and Harvard Law Review, 65 (1952), p. 1072.
- 115 By the end of 1952, only France had deposited its instrument of ratification.
- 116 Although the Visiting Forces Act, 1952 (15 & 16 Geo. VI and 1 Eliz. II, c. 67) does not refer to the N.A.T.O. Status of Forces Agreement and is general in its application to foreign forces in Great Britain, its enactment is a direct consequence of the adoption of the N.A.T.O. Agreement. During the debate on this Act in the House of Commons, it was indicated that implementing legislation might be necessary in the United States with respect to entry procedures (Article III), jurisdiction over criminal offences (Article VII), claims (Article VIII), and customs exemptions (Article XI) (Official Report, 27 October 1952, vol. 505, cols. 1599—1600). See also the Canadian Visiting Forces (North Atlantic Treaty) Act (15 & 16 Geo. VI, c. 28).
- 117 Texts in Conventions on Relations with the Federal Republic of Germany and a Protocol to the North Atlantic Treaty, U.S. Senate Doc. Executives Q and R, 82d Congress, 2d Session (1952), pp. 167 ff.
- 118 Texts in publication cited in preceding note.
- 119 As defined in sub-paragraphs 1 (d) and 1 (e) of Article I of the N.A.T.O. Status of Forces Agreement.
- 120 Article 50, Convention on the Rights and Obligations of Foreign Forces and their Members in the Federal Republic of Germany and Annex C thereto.
- 121 Article I, N.A.T.O. Status ofForces Agreement; Article 33, Jurisdictional Protocol to the E.D.C. Treaty; see also Article I of the Administrative Agreement between the United States and Japan, 28 February 1952, in D.S.B. 26 (1952), p. 382.
- 122 Similar terminology is used in the E.D.C. The three categories are replaced by the single group ‘Members of the Forces’ in the Convention on the Rights and Obligations ofForeign Forces and Their Members in the Federal Republic of Germany (Article 1, paragraph 7).
committed by foreign forces in the receiving state has been resolved in the N.A.T.O. Status of Forces Agreement by a formula which gives primary importance to the person or state against whom the offence was committed and to the status of the accused at the time. Exclusive jurisdiction is granted to one of the two states concerned only as to offences, including those against the security of the state, which are punishable by its law but not by that of the other. The sending state has primary jurisdiction over those offences committed by members of the forces or of the civilian component which are ‘solely against the property or security of that State’, or ‘solely against the person or property of another member of the force or civilian component of that State or of a dependent’ or which arise ‘out of any act or omission done in the performance of official duty’. Primary jurisdiction over all other offences rests in the receiving state. Other paragraphs provide for cooperation in investigations, the rendition of accused, and the procurement of evidence and witnesses; the policing of camps; and domestic legislation to safeguard the security of other contracting parties. These provisions are subject to review and modification upon the outbreak of hostilities, and it is not inconceivable that war-time conditions may require concession to the sending state of a far greater measure ofjurisdiction than is now provided by the Agreement. By contrast to this distribution of jurisdiction, the members of the E.D.C. will ultimately transfer to that organization penal jurisdiction over members ofthe European Defence Forces, who will be subject to a common disciplinary code and to common legislation drawn up by the member states. Transitional provisions stipulate that members of the forces will, until that time, for the most part remain subject to national law and will be tried by national tribunals acting by delegation of the Community or by European tribunals of national composition. The provisions of the E.D.C. Treaty and of the N.A.T.O. Agreement in this respect are not consistent, and modification of the latter will probably be required to take account of the special regime of the E.D.C. forces, both ultimately and during the transitional phase.
The question of the amenability of the forces to civil jurisdiction is inseparable from the settlement of claims by the governments of the sending and receiving states. The N.A.T.O. Status of Forces Agreement provides for a waiver of intergovernmental claims for damage to government property caused by a member or employee of the forces of the other state except in the case of substantial damage to property not in the possession of the armed forces. Claims arising out of the acts or omissions of the forces done in the performance of official duty which cause damage to ‘third parties’ are to be settled by the tribunals of the receiving state according to its laws, and the sending state is to be required to pay 75 per cent. of the awards. This novel formula, which is an adaptation of that incorporated in the Brussels Treaty Status of Forces Agreement, in effect provides that claims arising out of acts attributable to the sending state are settled under a foreign law, the 25 per cent. of the awards chargeable to the receiving state being a deterrent to excessive awards. This method of settling claims should probably put to rest complaints that it is inequitable that damage done by foreign troops to inhabitants of the receiving state should be recompensed in the discretion of the responsible foreign state. Damage to individuals caused by the forces of the E.D.C. will be settled by local Indemnity Commissions acting on behalf of the Community. The Jurisdictional Protocol states that the Community will make reparation for damage ‘caused by the dereliction of its services’, including that caused by the fault of its agents in the exercise of their functions, that caused within installations under its charge, and damage to roads and public installations of its members.
No less important than the establishment of responsibilities in jurisdictional matters is the provision of fiscal immunities for the forces and the persons accompanying them. The presence of members of the forces or of the civilian component in another N.A.T.O. country of which they are not nationals is not, under the N.A.T.O. Agreement, regarded as establishing residence or domicil for tax purposes. Such persons may also import their personal effects free of customs duties when they first arrive in a country to take up service there, but they are thereafter subject to normal customs inspections and duties. An immunity from taxation, measured by the same type of standard applied under the N.A.T.O. Status of Forces Agreement, is also applicable to personnel of the European Defence Forces. These immunities are limited in character and do not, for example, in the case of N.A.T.O. personnel extend to dependents or to taxes, such as those on transactions, which are not imposed on the basis of residence or domicil.
In addition to these provisions, the N.A.T.O. Status of Forces Agreement and the group of agreements relating to the E.D.C. contain stipulations regarding respect for the law of the receiving state, the entry and departure of members of the forces who are to be identified by their orders and identity cards, the recognition of foreign licences and driving permits, the wearing of the uniform, and the carrying of arms. A number of these provisions are designed to facilitate the movement of forces from country to country and to avoid vexatious, and even ludicrous, delays which would be caused if military units were to be subjected to the usual border-crossing formalities. The N.A.T.O. Status of Forces Agreement is, however, primarily oriented towards operations in time of peace, express provision being made for its modification in the event of hostilities and even for unilateral suspension of its provisions after due notice in time of war.
Although the Status of Forces Agreement purports to deal with the status of persons, including the members of the forces of one N.A.T.O. country stationed in or passing through the territory of another, it also contains undertakings regarding the privileges and immunities of the state itself. This confusion of purpose is reflected in occasional ambiguous terminology and in sudden silences at places where it might be expected the agreement would speak. While it deals specifically with the customs immunities of both the force—or more properly the state whose forces they are—and of the members of the force, only the immunity from taxation enjoyed by the members of the forces is considered. Several matters, such as authority to establish military post offices and welfare activities, including military canteens and ‘post exchanges’, which might be expected to appear in such an agreement, are left to bilateral arrangements.
Forces present in a foreign state for an extended period require housing, installations, training areas, and other facilities. Only a rudimentary provision that the receiving state is to make suitable arrangements to make buildings and grounds available to the forces of the sending state is found in the N.A.T.O. Status of Forces Agreement. At the request of N.A.T.O., the United States has entered into agreements with a number of countries whereby detailed provision is made for the furnishing of facilities and areas to the United States in the interest of collective defence. These arrangements normally provide that the host state will, without reimbursement, grant facilities to the United States to be developed either by the
United States alone or jointly by the two governments. The United States is given the right to improve and fit the areas for military use, install equipment and erect installations, store supplies, bring in the necessary military and civilian personnel, and otherwise prepare the areas concerned for military use. The problem of the ownership of the installations erected and equipment brought in is often worked out by providing that property which is capable of being removed remains the property of the United States and may be taken out of the country on the termination of the agreement, while immovable property is either expressly or impliedly recognized as passing immediately or ultimately to the receiving state. That these agreements are concerned with more than the particular military needs of the two parties thereto is indicated by stipulations that the use of the areas and facilities may be extended to other N.A.T.O. members by agreement of the parties. These agreements by themselves are only the beginning of the joint arrangements which must be made. They expressly state that they will be supplemented by technical agreements which will specify the exact facilities which will be made available and the detailed conditions under which they may be used. The establishment of the European Defence Forces will not bring to an end arrangements of this nature concerning the facilities and installations to be made available by a state to forces not its own. A protocol to the Treaty provides that military installations are to be made available to the E.D.C. at its request by agreements concluded between the individual state and the Community. The general principle discernible in the articles relating to this subject is that the state furnishing facilities is to make available to the Community without cost the installations which it already owns, but that the Community will bear the cost of acquiring any other facilities and of any improvements in the installations.
The occupation of Germany and Austria has required the establishment of lines of communication through other states so that the forces in those two countries may be supplied and maintained, both for occupational purposes and for defensive ends within the structure of N.A.T.O. The agreements regarding these facilities provide for the furnishing of certain installations and rights, including those privileges peculiar to the function of a line of communications, such as the right to install pipelines. Status of forces provisions are also required.
Reference must also be made to a further type of military facility, concerning which agreements must be concluded. The Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty serves a double function: it establishes the immunities peculiar to a headquarters and also adapts the N.A.T.O. Status of Forces Agreement to an international headquarters. In the latter respect, for example, the Protocol provides that the waiver of certain inter-governmental claims effected by Article VIII of the Status of Forces Agreement will apply equally to an Allied Headquarters and that the tort claims of ‘third parties’ will be dealt with as if the Allied Headquarters were a sending state. Requirements of co-operation in such matters as investigations of offences are recognized to rest both on the force to which the individual concerned belongs and on the headquarters to which he is assigned, while, in the matter of criminal jurisdiction, it is stated that the individual on duty in a headquarters remains subject to the penal law of the forces in which he serves. The more usual headquarters provisions are also included—recognition of the juridical personality of the Supreme Headquarters (Europe and Atlantic), freedom from taxation and customs duties, power to hold funds, and immunity of archives.
One aspect of stationing forces in a foreign country which requires particular attention is the necessity of obtaining immunity from local taxation. When states are banded together in an international military organization, it is particularly difficult to justify taxation by a state the economic burden of which will be passed on to another participant in the same group. The problem is not only one of the taxation of the property or transactions or activities of the state itself but of taxes which will add to the ultimate costs borne by the state concerned. Taxes imposed by state A on a contractor erecting facilities for state B within state A under a contract which provides for the reimbursement of such taxes by state B constitute a direct burden on the treasury of state B. Some taxes can be readily identified; others cannot be traced. The matter is not dealt with in the N.A.T.O. Status of Forces Agreement, and it has been necessary for the United States, as the principal financial contributor to the defence of the North Atlantic area, to enter into special tax agreements with individual N.A.T.O. countries. These agreements follow a common pattern of recognizing the principle that expenditures by the United States in such N.A.T.O. countries should not be subjected to taxation, and specify those particular taxes, imposed directly on the United States or on contractors with it, as to which exemption is to be granted. The tax regime envisaged by a Protocol to the E.D.C. Treaty provides, in a quite different manner, that goods acquired by the community within a member state will be subject to the normal duties and taxes, except that transportation from state to state within the Community will not be considered as an importation or exportation, and that goods acquired in nonmember states will be subject to taxes and duties upon entry into the area of the Community. The Community is to be exempt from payment of taxes on income and capital, except with respect to assets not utilized for the normal activities of the Community.
The military assistance legislation of the United States has provided for aid not only to individual states but to international organizations and groups of states as well. The requirement of such legislation that the states receiving military aid give assurances concerning its use has been met through agreements with the N.A.T.O. members, whereby they have undertaken the obligations required by the municipal law of the United States. The law of the United States already authorizes military aid to the E.D.C., and the Treaty recognizes that the Community itself will be entering into agreements of this nature.
The multilateral and bilateral agreements to which reference has been made are only representative of the international arrangements which international military command entails. The solution of problems of peace-time organization of international forces through compromise and agreement will be convincing proof that close co-operation in military matters does not require the stimulus of actual hostilities.
-  Typical examples are the Agreement between the Government of the United Kingdom and theRoyal Norwegian Government relating to the Participation of a Norwegian Brigade Group in theOccupation of the British Zone of Germany, 5 June 1947, T.S. No. 72 (1947), as extended byT.S. No. 8 (1949) and T.S. No. 61 (1951); Agreement between the Government of the UnitedKingdom and the Danish Government regarding the Participation of a Danish Contingent in theOccupation ofthe British Zone of Germany, 22 April 1947, T.S. No. 52 (1947), U.N.T.S. I, 110, andsee T.S. No. 60 (1951); Agreement between the Government of the United States of America and theGovernment ofthe Kingdom ofSweden concerning participation ofa Swedish Red Cross Hospital inthe United Nations Operations in Korea, 27 June 1951, T.I.A.S. 2268; and the similar Agreementwith Norway, 17 September 1951, T.I.A.S. 2325.
-  See Articles 9 and 10 of the Agreement between the United Kingdom and Denmark, cited inthe preceding note, and Agreement between the Government of the United States of America and theGovernment of the Union of South Africa concerning Participation of the Forces of the Union ofSouth Africa in the United Nations Operations in Korea, 24 June 1952, in D.S.B. 27 (1952), p. 106.
-  Agreement between the Parties to the North Atlantic Treaty Regarding the Status of theirForces, 19 June 1951, Misc. No. 5 (1951), U.S. Senate Doc. Executive T, 82nd Congress, 1st Session(1952). The N.A.T.O. Agreement is heavily indebted to the Agreement relative to the Status of
-  See Barton, ‘Foreign Armed Forces: Immunity from Supervisory Jurisdiction’, in this Year Book,26 (1949), p. 380, and ‘Foreign Armed Forces: Immunity from Criminal Jurisdiction’, in ibid. 27(1950), p. 186.
-  Article VII.
-  Article XV, paragraph 1.
-  Article 79, Treaty Constituting the European Defence Community, and Article 19, Jurisdictional Protocol.
-  Chapter II, Jurisdictional Protocol.
-  Article VIII, paragraphs 1 and 2. Damage caused to government property not in the possessionof the forces is to be submitted to arbitration, if the claim exceeds ?500.
-  Article VIII, paragraph 5. Quaere: Is a claimant who is a national of, or connected with the forcesof, the state responsible for the damage a ‘third party’ whose claim must be settled under the laws of thereceiving state?
-  Article 8, Agreement relative to the Status of Members of the Armed Forces of the BrusselsTreaty Powers.
-  Provision is made for ex gratia payments in the case of claims arising out of tortious acts oromissions which are not done in the performance of official duty. In the case of the United States, suchpayments could continue to be made under the provisions of the Foreign Claims Act (55 Stat. 880), asamended (31 U.S.C. 224d et seq.).
-  Article 10, Jurisdictional Protocol.
-  Articles 1—9, Jurisdictional Protocol.
-  Article X, paragraph 1, N.A.T.O. Status of Forces Agreement.
-  Article XI, paragraphs 1, 5, 6.
-  Article 41, Convention Relative to the Status of European Defence Forces and the Tax andCommercial Regime of the European Defence Community.
-  Respectively, Articles II, III, IV, V, and VI of the N.A.T.O. Status of Forces Agreement, andArticles 1, 2—4, 6, 9—10 of the Convention Relative to the Status of European Defence Forces.
-  Article XV.
-  Article IX, paragraph 2, for example, deals with local purchases in the receiving state by thesending state, and paragraph 4 thereof with the filling of local civilian labour requirements.
-  Although ‘force’ is defined in Article I as meaning the personnel of the armed forces of oneContracting Party while in the territory of another, the same term is used in Article XI, paragraph 2, asreferring to the armed forces in their collective sense rather than as individuals. The full term, ‘memberof a force’, used in paragraphs 1 and 5 of the same article, is not required if the definition in Article I isto be taken at face value.
-  Article XI, paragraphs 2, 3, and 4.
-  Article XI, paragraphs 5 and 6.
-  Article X.
-  Article IX, paragraph 3.
-  Agreement between the Government of the United States of America and the Government ofthe Kingdom of Denmark concerning the defence of Greenland, 27 April 1951, T.I.A.S. 2292;Defence Agreement between the United States of America and the Republic of Iceland, 5 May1951, T.I.A.S. 2266; Agreement between the United States and Portugal regarding Military Facilitiesin the Azores, 6 September 1951, in D.S.B. 27 (1952), p. 14. A number of other arrangements exist,but their texts have not been made public.
-  Article XI, Agreement with Denmark; Article 3, Agreement with Portugal.
-  Article IV, Agreement with Denmark; Article 9, Agreement with Portugal.
-  Since the agreements mentioned were concluded before the coming into force of the N.A.T.O.Status of Forces Agreement, they contain interim provisions concerning the status of the forces (seeArticles VII—IX, Agreement with Denmark, and Annex on the Status of United States Personnel andProperty, annexed to Agreement with Iceland, T.I.A.S. 2295).
-  Article 21, Convention Relative to the Status of European Defence Forces and the Tax andCommercial Regime of the European Defence Community.
-  Articles 22—26.
-  Treaty between the United Kingdom and Belgium regarding Privileges and Facilities for BritishForces in Belgium in Connexion with the Occupation of Germany and Austria, 11 March 1946, T.S.No. 13 (1949), U.N.T.S., vol. 1, p. 387; see D.S.B. 25 (1951), p. 94, concerning a line of communications across Italy.
-  28 August 1952. An analogous Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff (U.S. Senate Doc. Executive U, 82d Congress,2d Session (1952)) provides in Article 2 thereof that it is not applicable to military headquarters ormilitary bodies.
-  Article 6. 3 Article 3, paragraph 2. 4 Article 4, paragraph (a).
-  156 Article 10. 6 Article 8. 7 Article 12. 8 Article 13.
-  160 See Fairman and King, ‘Taxation of Friendly Foreign Armed Forces’, in A.J.I.L. 38 (1944),
-  p. 258.
-  161 The Congress of the United States has expressly forbidden the expenditure of mutual security
-  funds ‘for payment of taxes’ (sec. 521, Mutual Security Act of 1951, 65 Stat. 384; 22 U.S.C. 1672).
-  162 With the Netherlands, 7 March 1952, T.I.A.S. 2563; Italy, 5 March 1952, T.I.A.S. 2566;
-  Iceland, 5/18 March 1952, T.I.A.S. 2557; Denmark, 7/9 April 1952, T.I.A.S. 2546; the United
-  Kingdom, 17/18 March 1952, T.I.A.S. 2559; France, 13 June 1952, T.I.A.S. 2556, 2655; Luxem
-  bourg, 13 March 1952, T.I.A.S. 2538; Belgium, 18 March/7 April 1952; and Norway, 27 June 1952.
-  Title II, Chapter I, Convention Relative to the Status of European Defence Forces and the Taxand Commercial Regime of the European Defence Community.
-  Article 39.
-  Sec. 2, Mutual Security Act of 1951 (65 Stat. 373), as amended (22 U.S.C. 1651); ibid., sec.509; sec. 502, Mutual Defense Assistance Act of 1949 (63 Stat. 717; 22 U.S.C. 1573); ibid., subsec.408 (e).
-  Sec. 402, Mutual Defense Assistance Act of 1949; sec. 511, Mutual Security Act of 1951.
-  Mutual Defense Assistance Agreements between the United States and Belgium, 27 January1950, T.I.A.S. 2010; Denmark, 27January 1950, T.I.A.S. 2011; France, 27January 1950, T.I.A.S.2012; Italy, 27 January 1950, T.I.A.S. 2013; Luxembourg, 27 January 1950, T.I.A.S. 2014; theNetherlands, 27 January 1950, T.I.A.S. 2015; Norway, 27 January 1950, T.I.A.S. 2016; the UnitedKingdom, 27 January 1950, T.S. No. 13 (1950), T.I.A.S. 2017; Portugal, 5 January 1951, T.I.A.S.2187.
-  Article 99, Treaty Constituting the European Defence Community.