45

he article summarises the historicaldevelopments of status of forces

agreements in international law andprovides an overview of the negotiationsof the NATO Status of Forces Agreement(NATO SOFA) from 1951. It outlines therules of consent (ius ad praesentiam)confirmed in the NATO SOFA Preamble.The article also presents a suggestion as tothe scope of application of the NATOSOFA, based on an analysis of its Article1, the definition of a �force�, and of the

NATO Status of Forces Agreement:Background and a Suggestion for the

Scope of ApplicationBy Mette Prassé Hartov*

negotiations that led to the wording ofthe said article. The article recommendsto adopt a �default� clause, or rule ofassumption that when Parties to theNATO SOFA send or receive forces,including individual members of a force,it is assumed that the NATO SOFAapplies, no matter the nature of the visitor the stationing. The same clause, or ruleof assumption, is suggested to be adoptedfor the application of the PfP Status ofForces Agreement (PfP SOFA).

1. Background

The Baltic states are all Parties to the�Agreement among the States parties tothe North Atlantic Treaty and the otherStates participating in the Partnership forPeace regarding the Status of their Forces�and its additional Protocol � in short,the PfP SOFA. The agreement makes the�Agreement between the States Parties tothe North Atlantic Treaty regarding theStatus of their Forces� (NATO SOFA)

* Mette Prassé Hartov is a Former Legal Adviser to the Estonian Ministry of Defence, currently assigned to the Danish Judge AdvocateGeneral�s Office. The views expressed in this article are the author�s own and cannot be attributed to the Danish Judge AdvocateGeneral�s office.

46

applicable between the signatories, as ifthey were signatories to that Agreement.The NATO SOFA regulates the status offorces between NATO allies when theysend forces to serve in the territory ofanother ally, both for short-term visits(exercises, joint training, and meetings)and for long-term stationing.

The provisions of the PfP SOFA (andas such, the NATO SOFA) mainly gov-ern exercises and other military co-op-eration activities between NATO andPfP States. Among the three Baltic statesthe agreement is applied for the statusof forces and co-operation in the Balticmilitary co-operation projects: The Bal-tic Battalion,1 the Baltic Naval Squad-ron,2 the Baltic Air Surveillance Net-work3 and the Baltic Defence College.4

In addition, the provisions of the PfPSOFA regulate the status of the foreignnon-Baltic personnel assigned to the Bal-tic Defence College in Tartu. The normsand rules established by the NATO SOFAare, through the PfP SOFA, applied ona daily basis in Estonia, and it has beensubject to a thorough implementation

by the Estonian Ministry of Defence asa part of the process instituted underNATO Membership Action Plan.5 Onceacceded to the Washington Treaty, Es-tonia will be invited (and expected) tojoin the NATO SOFA and other NATOstatus agreements.6

Special agreements on the status ofthe Baltic Battalion Headquarters andBaltic Defence College as intergovern-mental institutions are concluded sepa-rately and are not made subject of thediscussions of this Article. Neither isthe Further Additional Protocol to the�Agreement among the States parties tothe North Atlantic Treaty and the otherStates participating in the Partnershipfor Peace regarding the Status of theirForces�, which enables PfP States torecognise the international legal statusof NATO International Military Head-quarters established under the �Proto-col on the Status of International Mili-tary Headquarters set up pursuant tothe North Atlantic Treaty� (done inParis, 28 August, 1952).

2. Historical overview

Peacetime stationing of troops abroadis a more recent development that hascoincided with the adoption of theUnited Nations Charter and its limita-tions to the right of states to use force.In 1982, a writer argued that �today, thepermanent stationing of foreign armedforces overseas is commonplace, firmlyembedded in the post-war global orderthat has been moulded by the geo-strate-gic interests of the United States and theSoviet Union.�7 Whereas friendly tran-sit has been applied through history,8

although not on a very frequent basis,the stationing of foreign troops abroadhas normally been associated with aggres-sion and occupation. After World WarII, the number of bases and personnelstationed abroad increased. The UnitedStates remained stationed in Japan, thePhilippines and in Germany. During theCold War, the establishment of NATOand the Warsaw Pact increased the num-ber of bases abroad, and a survey from1982 recorded that foreign troops were

47

based or stationed in 58 states, of which30 hosted U.S. troops, and 12 states -Soviet troops.9 In this number is notincluded the regular presence of troopsdue to training and exercises. Duringthe Cold War, the typical stationing oftroops was divided into four categories10 :

1. The first category, combat situa-tions, falls outside the scope of this ar-ticle by the assumption that the receivingstate does not consent to the presence ofthe foreign force. This would apply equallyto a Peace Enforcement Operation or aHumanitarian Intervention, unless theforce is invited by the legitimate authori-ties of the Receiving State.

2. The second category, the sending ofspecial military assistance to operate as apart of the Sending State diplomatic mis-sion was utilised by the United States in1949 in order to render military assistancein the form of supplies or equipment(Military Advisory Assistance Groups �MAAG) to and within non-NATO coun-tries. Different agreements11 have beenconcluded between the United States andthe receiving states, the main feature be-

ing that such arrangements grant variouslevels of diplomatic immunity to the U.S.MAAG-personnel under the Vienna Con-vention12 :

3. As for the third category, the morerecent term �Peace Support Operations�covers several situations, varying from tra-ditional peacekeeping, preventive deploy-ments to enforcement operations. Tradi-tionally, the Receiving State invites or con-sents to the deployment of the foreigntroops within its territory. The secondmain characteristic is that the United Na-tions endorses the operation. The opera-tion itself is conducted either by theUnited Nations, by a regionalorganisation, or by a coalition of states.The legal regime applied differs depend-ing on the type of operation, but it seeksin general to prove exclusive jurisdictionto the Sending States, freedom of move-ment and access to the territory of thereceiving state, and compensation of claimsfrom third parties only within a well-de-fined area. Recent examples areUNPROFOR, IFOR and SFOR (Bosnia-Herzegovina) and KFOR (Kosovo).

4. The fourth category, peacetime gar-rison, covers the stationing of troops,basing of contingents and conduct ofmilitary activities carried out abroad withthe consent of and in co-operation withthe Receiving State. Within NATO, mili-tary co-operation and basing arrangementshave constituted a normal part of the alli-ance operations in pursuit of the objec-tives of Article 313 of the WashingtonTreaty. Although the Alliance and, thereby,the co-operation and the presence of Al-lied Forces ultimately is aimed at deter-ring and repelling aggression, the presenceof the allied foreign force in the ReceivingState is based on consent, co-operation andrespect for the sovereign powers of thereceiving state. This situation has also beennamed �peaceful military occupation�. It ischaracterised by the stationing of forcesover longer periods of time, and by repre-senting a regular co-operation between thesending and the Receiving State, i.e theinternational community has accepted theco-operation, whereby it lacks exceptionalcircumstances such as war, implementationof a treaty etc.14

48

3. Agreement betweenthe Parties to the North

Atlantic Treaty regardingthe Status of their Forces,

London, 19 June 1951

3.1. Drafting the NATO SOFA �a few significant points15

In support of the principles institutedby the Washington Treaty, it became ob-vious very early that the status of alliedforces had to be defined in a formal agree-ment. Two approaches were discussed be-fore the work was initiated: whether toregulate the status in bilateral agreementswhereby the agreements could reflect thegeographical or political conditions ineach of the NATO countries, or to adopta multilateral agreement. The latter solu-tion was chosen for several reasons: amultilateral agreement ensures reciproc-ity and transparency; the same rules ap-ply throughout the Alliance - who is to-day a Receiving State can tomorrow bethe Sending State. Thus, there is a com-

mon interest in achieving comparablestandards. Another point is that a multi-national agreement sets an equal treatmentof the forces no matter where they arestationed and the same privileges are ap-plied to all stationed forces, no mattertheir nationality.

Other arguments were that all theNATO States shared a common concepton main legal and administrative prin-ciples, and therefore there was no need tochallenge the setting and enter into moredifficult bilateral negotiations, whichwould have demanded cross negotiationsbetween all of the Allies.

On January 15, 1951, the U.S. Repre-sentative requested the Deputies of theNATO Council to set up a WorkingGroup in order to draft a Status of ForcesAgreement. It was later agreed that thediscussion would take its starting pointin the Brussels Agreement,16 a Status ofForces Agreement concluded in supportof the Western European Union and ap-plied among five of the NATO Allies (Bel-gium, France, U.K., Luxembourg and theNetherlands). However, the U.S., after

having studied the Brussels Agreement,submitted an American draft, and whenthe Working Group met on January 29,1951, in London for its first meeting, twodrafts were on the table.17 The WorkingGroup submitted the final text on June01, 1951, and the NATO SOFA was signedin London on June 19, 1951. Between thepresentation of the first drafts and thefinal agreement only 6 drafts were ex-changed, a number of meetings were heldand a memoranda tabled and discussed.18

The Working Group insisted that thefinal draft tied together the different opin-ions represented in the work - the SOFAshould be an acceptable compromise. Asit is very difficult to reconcile the inter-ests of the Receiving State and the Send-ing State, the text of the NATO SOFAhas been categorised by its later users as�incomplete� and �not ideal�, and it isstated that only the good will of the Al-lies makes the application of the variousSOFA provisions possible.n Language. Although the negotiations

were conducted in both the English andFrench languages, it was not clear from

49

the start that the SOFA would end up inthe two NATO languages. This was a com-promise, and the reader will be able tofind different terms used, depending onwhich of the texts is being studied.n Who could sign the SOFA. The

question of whether an agreement wouldbe open to signature of all the NATOmembers arose as Iceland, a member of theAlliance, had (and has) no forces. It wasargued that since Iceland could act only asa Receiving State a special arrangement wasrequired. In the spirit of the Alliance anddue to the fact that the U.S. signed anAgreement with Iceland during the nego-tiations on the stationing of the U.S. forceson Iceland, Iceland did in fact sign theSOFA but has not taken steps to ratify it.n Jurisdiction. This article was sub-

ject to several redrafts. The doctrine ofthe law of the flag (exclusive jurisdictionremains with the Sending States) and thatof restricted territorial sovereignty (divi-sion of jurisdiction between the courtsof the Receiving State and the authoritiesof the Sending State) meet in a compro-mise based on both exclusive jurisdiction

to the Sending and the Receiving Stateswithin defined areas and concurrent ju-risdiction in all other areas with a key tothe primary right to exercise jurisdiction.n Time factor. The text of the NATO

SOFA was developed over less than 6months. Another label that has been stick-ing to the SOFA is that it - in additionto the compromises - suffers from beingnegotiated so rapidly: the text is not al-ways clear, there are differences betweenthe English and the French versions, andit is not a self-sufficient document, there-fore it was necessary to adopt new lawsand regulations in all of the signatory statesto comply with the NATO SOFA.

Despite its age and reputation, theNATO SOFA still serves as a model forother SOFAs and will � so I believe � forSOFAs to come.19

3.2. Sending and receiving forces �the consent

Friendly admittance of troops (whetherin transit or to be stationed) requires the

consent of the sovereign Host State20 .Armed forces embody the sovereign pow-ers of a State, and the lawful peacetimepresence (transit, short visits, stationing)of armed forces of one State on the terri-tory of another State is conditional tothe consent of the Receiving State. Theconsent can be announced in several ways.Depending on the laws and practice ofthe State receiving the visiting forces, theconsent can be informal or formal, and itcan be announced as an explicit consentor invitation to conduct or participatein specific activities, or as a license toperform defined actions.21 The level ofauthorisation appointed to confer theconsent may vary according to nationaldivison of powers, but the consent � whengiven by or on behalf of the Government- is binding.22 The general framework forthe deployment (e.g. standing or ad hocmilitary co-operation), if any, may im-plicitly or explicitly announce the con-sent. This is the common situation whenheadquarters and military installations areset up.23 A bi- or multilateral frameworkmay also provide the format for and the

50

conditions attached to the consent (if any),and some agreements express a generalconsent, leaving detailed issues to be settledbetween the parties.

Not many defence agreements expressan explicit Host State consent for the Al-lies to deploy their forces,24 neither doesthe Washington Treaty. Co-operation andunification of efforts are pointed out asmain tools for preserving peace and secu-rity in the North Atlantic TreatyOrganisation area. However, nothing inNATO legal framework confers any rightsto Allied States to deploy forces to the terri-tory of another ally without the consent ofthat State. Despite of the integrated mili-tary co-operation, the principle of consenthas remained unchanged, and the principleis confirmed in the NATO SOFA.

As for the format of the consent, thepractice within NATO is multiple. Again,the choice is determined by the constitu-tional imperatives of the Allies, respec-tively, and very often also by the charac-ter of the co-operation. The consent toreceive foreign military troops is oftenaccompanied by conditions and specifics

as to the number of troops, the characterof the arms to be imported, the use ofweapons, designated border crossing ar-eas. E.g. NATO and PfP exercises are con-ducted upon invitation from the HostState � the status of forces is derived fromthe NATO SOFA and the details on hostnation support, movement co-ordinationetc. are set out in a Memorandum ofUnderstanding concluded with the HostState.25 When the sending of forces ismore perpetual and/or lasts in time (sta-tioning) the conditions are frequentlysubject to formal arrangements. The levelof the arrangement (treaty vs. administra-tive arrangement) depends on the deci-sion of the contracting parties.

In the Baltic military co-operationprojects, all activities (except e.g. meetings)are agreed upon annually and adopted inActivity Plans, issued for each of theprojects. In order to ensure that consent isobtained prior to the conduct of certainactivities (e.g. manoeuvres and exercises),the various agreements concluded in sup-port of the projects envisage that approvalis obtained at the responsible levels.26

The requirement to obtain prior con-sent is stated in the Preamble to the NATOSOFA, which states that the NATO SOFAdoes not affect the (national) decision tosend forces, nor does it decide on the spe-cial formalities or conditions under whichthe forces might be disembarked or takeup their duties in the Receiving State. ThePreamble leaves it to the Parties to con-clude separate agreements on the entry andfacilities (here understood as the condi-tions for disembarkation and for takingup stationing) to be provided in supportof a foreign force: �Considering that theforces of one Party may be sent, by ar-rangement, to serve in the territory ofanother Party; Bearing in mind that thedecision to send them and [�], will con-tinue to be the subject of separate arrange-ments between the Parties concerned.�

3.3. Application of the NATO SOFA

When is the NATO SOFA then to beapplied? The question can be addressed as

� to whom (categories of persons);� where (geographical application);

51

� when (functional application).Answers to the questions are, by and

large, encompassed in Article I, in particu-lar in paragraph 1, (a), which defines �aforce�.27 The definition is limited to defin-ing the status of military personnel. Althoughthis may not be obvious when looking atthe wording, this was the clear intention ofthe drafters, and this is why a separate defi-nition is adopted on civilian components.The main arguments for not including ci-vilians in the general definition were that a)they were not included under the BrusselsTreaty, and b) civilians would not, underthe current practice in some countries, en-joy the same status as the armed forces inpeacetime. The drafters however agreed thatthe status of civilians and that of dependantsneeded to be included in the NATO SOFAbut separate definitions were required.

To whom (application in personae)a. Military personnel (article I, paragraph

1, a.):To be a force or a member of a force,

one must belong to the land, sea or airarmed forces of a Party to the SOFA.

The definition covers collective units andindividuals as well as personnel in transit,but excludes certain categories of person-nel (diplomatic personnel).

� The definition deliberately covers�force� in the collective sense. Whenevera reference is made to an individual mem-ber the term �member of the force� isused throughout the NATO SOFA.28

� In order to ensure that agreed cat-egories would not come under the agree-ment (i.e. the Dutch-Belgium militaryagreement), an escape clause had alreadybeen inserted in the definition (��pro-vided that the two Contracting Partiesconcerned may agree that certain individu-als, units or formations shall not be re-garded as constituting or included in a�force���).29 However, in a meeting of theCouncil Deputies on 24 May 195130 theU.S. raised a number of points, includ-ing that the U.S. Government wished toexclude military members of a diplomaticmission from the definition of a �force�since such members already enjoy a cer-tain privileged status and since their sta-tus could be settled by bilateral agreements.

The Chairman of the Working Groupreplied that the definition already allowedparties to conclude bilateral agreements,and that the U.S. concern could be met byinserting �individuals� in the text in orderto clarify that bilateral agreements on non-application of the SOFA could be con-cluded not only on units and formationsbut also in respect of individuals.31

� The issue of whether or not theNATO SOFA would apply to forces intransit or on leave was discussed through-out the drafting of Article I. The discus-sion is commented on below (��in connec-tion with their official duties��). The conclu-sions from the discussions are that per-sonnel in transit come under the agree-ment, and so do personnel on leave, ifthey are having their leave in the state towhich they are posted.32 A further appli-cation can be rendered either unilaterallyby a Contracting Party or by agreementsbetween the Parties.33

The discussions did not touch on theterm �belonging to�. At an early pointthe U.K. categorised civilians, as person-

52

nel �not entitled to wear uniform� andnot subject to �the same close disciplineand control as the uniformed membersof the force�.34 The term was reversed intoa baseline for the definition of �forces�since it proved difficult to reach a com-mon ground on that term (military force,armed forces, contingent, foreign force),and it became a goal to find a wording,which was broad enough to embody allpersonnel �entitled to wear uniform�/allmilitary personnel35 . The wording �be-longing to� became the answer, and thedefinition does accordingly not distin-guish between military or paramilitaryunits or between personnel in active ser-vice, reservists and retired personnel. Thedeciding factor is if the personnel is sub-mitted to military command.36

Unlike the definition of �civilian com-ponent� nationality is not an explicit con-dition. The drafters dismissed proposalsto adopt a clause with the argument thatonly Article III, par. 2 and 5 may poseproblems, and that it would be ��dan-gerous in certain cases, under Article VIIand Article VIII, for example, to withdraw

the privileges given under the provisionsof the present Convention, from nation-als who were members of a force.� It wasagreed that instead of inserting a clauseon dual citizenship the drafters shouldrather examine each Article in order todetermine if it should apply to membersof a force who � at the same time � arenationals of the Receiving State.37 Reser-vations on nationality were adopted inArticle III, par. 5,38 Article VII, par. 439

and Article X, par. 4.40

Finally, the member of the armed ser-vice of one Party must be present on theterritory of another Contracting Party, i.e.Receiving State personnel are excluded fromthe definition of a �force�. This is a genu-ine principle under international law.41

b. Members of the civilian component (ar-ticle I, paragraph 1, b.):

An increasing number of civilians areemployed by the armed forces. In somestates, where stationing of troops abroadis a regular feature, the number and cat-egories of civilians that are either em-ployed or follow the armed forces vary

from Postal/Base Exchange employees,civilian contractors, welfare personnel,teachers etc. to Red Cross personnel. Inthe course of drafting the NATO SOFAsome states were not willing to extend theprivileges granted to a force to the civil-ian personnel, and the chairman con-cluded that it would be advisable to adopta separate status. It was also clear that ci-vilians would not enjoy the same statusunder the NATO SOFA as the status con-ferred upon members of the force42 .

The definition of civilians appears clearand understandable, but it has in fact givenrise to problems of interpretations, andthe drafters have not been complimentedfor their efforts.43 The definition does notindicate the standing enjoyed under theNATO SOFA � the status is defined (ornot defined and thereby left to ReceivingState law) in the text of the subsequentarticles. Members of the civilian compo-nent are, to a large extent, granted thesame status as their uniformed colleagues.They are for more obvious reasons ex-cluded from wearing of uniform (ArticleV), carrying of weapons (Article VI) and

53

guarding and policing functions (ArticleVII, par. 10). In some articles members ofthe civilian component are excluded fromthe wording of the articles because theirnationality already disqualifies them (seebelow). This applies to Article VII, par. 4,and Article X, par. 4. However the notetabled by the U.K.44 (and echoed by otherdelegations) that it would not be accept-able to extend �full� status to civilians hasleft its marks in the SOFA.

The definition contains four strict cri-teria:

� be civilian,� accompany a force,� be employed by the armed service,� fulfil the conditions of nationality.

The first criterion does not give riseto comments � it covers a personnel thatis not entitled to wear uniform45 .

The second criterion is more compli-cated: when does the civilian componentaccompany a force; and what if the civil-ian component deploys before the forcein order to make sufficient preparationsto prepare and organise the arrival of the

force? It seems to be contradictory to theoverall aim of the SOFA if civilian em-ployees are excluded from the NATOSOFA because they deploy separately fromthe force. Therefore it is assumed that thecriterion is overruled by the third crite-rion � that the personnel have to be em-ployed by the armed services of the Send-ing State46 . Although this criterion seemsobvious, the state practice on employmentof support personnel varies greatly. Dur-ing the drafting, the U.S. outlined thecategories of civilians, which were con-sidered to be covered (construction work-ers, canteen personnel, specialists, officepersonnel, stenographers, etc.) and those,which were excluded (Red Cross workers,entertainers, YMCA personnel)47, but morecould be added. The most debated cat-egory is probably that of contractors, i.e.non-governmental, non-military compa-nies or individuals, who provide servicesand support to the visiting forces on therequest of the force. Depending on withwhom the contract is concluded, indi-vidual contractors are considered to beincluded in the definition, whereas the

employees of companies, which have acontract either with the force or with agovernment agency, are not to be includedin the definition.48 In order to overcomethe restrictions imposed by the NATOSOFA some states are eager to concludesupplementary agreements to ensure thatalso categories of civilians not directlyemployed by the armed service are in-cluded in the definition of a civilian com-ponent. These can be different personnelgroups mentioned before (Post/Base Ex-change, civilian contractors, Red Crosspersonnel, teachers).49 In the U.K. prac-tice, members of a Sending State civiliancomponent have to hold a non-U.K.-Com-monwealth passport, which declares by anun-cancelled entry that the holder is amember of a civilian component of thevisiting force of the issuing state, andentry of accept by the U.K. authorities(U.K. Visiting Forces Act).

The fourth criterion on nationality hadpartly been included in the first U.S. draft.France brought the criterion back intothe discussions during the final stage ofdrafting in response to the draft NATO

54

SOFA circulated by the Chairman to-gether with his report on 28 February1951.50 To come under the protection ofthe NATO SOFA, members of a civiliancomponent have to be nationals of aNATO state,51 and not to be stateless.Furthermore, the person may not be anational of or an ordinarily resident inthe Receiving State. The first two require-ments are rooted in security screeningconsiderations. The third requirement wasadopted to ensure that the person doesnot escape jurisdiction or enjoys the cus-toms and fiscal benefits of being a mem-ber of a civilian component. Whereas thefirst part of the criterion does not giverise to problems, the second part hasproven troublesome in two areas: dualcitizenship and the calculation of the timeof residence.

c. Dependants (Article I, paragraph 1, c.)As was the case for civilian personnel,

dependants have traditionally accompa-nied visiting forces when sent abroad toserve. The definition of dependants statesthat two categories of persons are

recognised as �dependants� under theNATO SOFA: the spouse and the childof a member of a force or civilian com-ponent, or of the spouse, when the childis depending on his or her support. Thedefinition in Article I, paragraph 1, c.,does not address the question of dual citi-zenship. The issue is, like for members ofthe force and of the civilian component,addressed in each of the articles.

The legalities of the relationship is notsubject of the NATO SOFA, but the word�spouse� does indeed translate to �wife orhusband�52 and more than indicates thatthe relationship has to be formalised. How-ever, it seems reasonable to assume that therelationship only has to be formalised (andacknowledged in the passport of the de-pendant) in the Sending State and that theReceiving State will accept the legitimacyof the relationship, also if the matrimo-nial institute does not exist in the Receiv-ing State, unless the international privatelaw of the Receiving States dictates differ-ently (e.g. if the relationship goes againstthe ordre public of the Receiving State).

The English version excludes, if taken

very literally, children of the spouse fromthe definition of �children� (��depend-ing on him or her for support��). TheFrench text, on the other hand, if trans-lated literally, excludes children, who aredepending on either of the spouses forsupport as well as children of single par-ents (��qui sont â leur charge�� � ��de-pending on them for support��). In prac-tice both children depending on the mem-ber of the force or civilian componentand/or his or her spouse are covered bythe definition,53 including adopted chil-dren and children of previous marriagesof either the member or the spouse, alsoin case the member or spouse does nothave custody over the child, assuming thatthe non-custodial parent remains legallyresponsible (under sending state law) forsupporting and providing for the child.54

The definition does not fix an age limitfor when a �child� is to be considered assuch, the criteria is entirely attached tothe dependence and each case is to be jus-tified although minority of age does pre-sume dependence. �Dependence� is pri-marily understood as financial interdepen-

55

dence; however the degree of dependenceis not made clear. In practice this has notgiven rise to cases.55

The definition principally excludes allother family members. To compensatefor the narrow definition, some stateshave, through bilateral agreements,broadened the scope of Article I. Thecommon feature of the wider definitionsis that factual dependants are includedin the definition, i.e. persons/relativeswho are factually dependent on a mem-ber of the force or a member of a civil-ian component.

The definition of �dependants� doesnot indicate the standing enjoyed underthe NATO SOFA � their status is defined(or not defined and thereby left to Re-ceiving State law) in the text of the sub-sequent articles. The general picture isthat dependants are largely treated asother foreigners with the few exemptionslisted below. Unless waived by the Re-ceiving State, dependants are subject tovisa requirements, and they become sub-ject to Receiving State law (driver�s li-cense, tax).

Where (geographical application)The force must be operating in the

North Atlantic Treaty area. This crite-rion states a geographical limitation, i.e.that the member of a force of one of theParties must be present on the territoryof another Party in the North AtlanticTreaty area, i.e. the area of the North At-lantic Treaty as defined in the Washing-ton Treaty, Article 6. The geographicallimitation set out in the NATO SOFA,Article I, is further limited by the NATOSOFA, Article XX (metropolitan terri-tory).

When (functional application)The member of the force must be

present in the territory of another partyin connection with their official duties.Whereas the wording �...in connection withofficial duties...� itself only gave rise to fewdiscussions, the factual meaning of �...theNorth Atlantic Treaty area...� and the appli-cation of the SOFA was addressedthroughout the drafting.

In a meeting on 8 February 1951,56 theapplication of the SOFA was on the

agenda: the representative of Belgium in-quired if the suggested definition of�armed force� should be understood as ifthe Agreement applied to members of aforce of a Sending State no matter thereason why he was present in the terri-tory of the Receiving State, or if a dis-tinction should be made to clarify thatthe Agreement would only be applied forthe purpose of carrying out duties underthe Washington Treaty. The U.S. repliedthat no distinction was drawn or intendedto be drawn, as the Agreement should beapplied to all forces of the Participants,whatever the purpose of their presencein the territory of the Receiving State.The Canadian representative suggestedthat this be highlighted either in the Pre-amble or in the definitions, and on aDutch question it was decided to lookinto the issue if the Agreement affectedthe status of military representatives ac-credited to the Receiving State as diplo-mats. On 12 February 1951,57 a redraft ofthe Article was circulated, reflecting thediscussions of the Juridical Subcommit-tee. In this draft, the ���force� means any

56

personnel belonging to the land, sea orair armed services of one ContractingParty, maintained by it in the territoryof another Contracting Party.�

On 22 February 1951, the draft Agree-ment was re-examined.58 As for Article I,�� little was to note beyond draftingpoints, such as the addition of the words�in connection with the operation of theNorth Atlantic Treaty� in the definitionof a �force� in Article I.� 59 The commen-tary does not explain on whose initiativethe phrase was adopted, but it could be areminiscence of earlier discussions. TheChairman of the Working Group sub-mitted a new draft on 28 February 195160

- with the said wording of and withoutany specific comments on - Article I, para-graph 1(a). In response, the U.S. pro-posed61 to change the sentence �...in con-nection with the operation of the North Atlan-tic Treaty� to read �... in the North AtlanticTreaty area�. The proposal is accompaniedby the explanation, repeating statementsmade by the U.S. in a previous meetingthat the Agreement should be made ap-plicable to all military personnel on duty

status in the North Atlantic Treaty area(my underlining). The Netherlands hadanother comment62 : if doubts arise aboutthe meaning of the wording �...in connectionwith the operation of the North Atlantic Treaty�,the procedure envisaged in Article XVI (con-sultations in the North Atlantic Council)should be applied. The proposed amend-ments were discussed in session,63 and theU.S. delegation supplemented the explana-tion of the amendment by stating that itwould be difficult to determine if forceswere present in the territory of anotherNATO member due to the operation ofthe Treaty, and that such distinctions wouldlead to considerable administrative difficul-ties. The U.S. proposal did not enjoy sup-port throughout the Working Group. Therepresentative of Belgium drew attentionto the bilateral military co-operation betweenBelgium and the Netherlands that was notrelated to the Washington Treaty, but wouldbe covered by the NATO SOFA if the word-ing proposed by the U.S. were adopted,�...which was clearly contrary to the spirit of the[NATO SOFA]�. Belgium therefore sug-gested that a clause be inserted leaving it to

the Receiving State to decide if foreigntroops were to come within the provisionsof the SOFA. Denmark and Norway op-posed to the U.S. proposal, stating thatmembers of a force that might be presentin the territory of another Ally on leavecould not be considered covered by theSOFA. Canada considered it necessary tospecify that the text referred to members ofa force collectively. The Chairmanrecognised the concerns of Belgium butdismissed the proposal to introduce a sys-tem of unilateral decisions on whether ornot the SOFA would be applicable. Instead,an amendment to the text should ensurethat exemptions could be agreed. As for theCanadian comments, the Chairman repliedthat the provision was intended to refer toa force in the collective sense, and wheneverreference was intended to an individualmember of the force, the expression �mem-ber of the force� was used. The Danish andNorwegian comments were not supportedeither, instead it was emphasised that theSOFA would also apply to members of aforce on leave in the same State in whichtheir force was present.

57

Following the discussions, a new draftwas submitted,64 and the wording of Ar-ticle I, paragraph 1(a) is almost the sameas the final version, combining the U.S.position (in the Treaty area) with theBelgian concern, by having adopted anescape clause that allows two Parties toagree that �...certain units or formationsshall not be regarded as constituting orincluded in a �force� for the purposes ofthe present Agreement.� The redraft alsointroduced the wording: �...North Atlan-tic Treaty area in connection with their officialduties,...� (my underlining). Later, in ameeting of 7 May 1951, �individuals�were added to the escape clause.

In the following meeting of the Work-ing Group,65 no comments were made onthe adoption of the new wording and arevised draft was submitted.66 Whereas nodiscussion on the principle issues raised byBelgium (contrary to the spirit of the SOFA)or by the U.S. (no distinction is to beadopted on the purpose of the presence) isreflected in the summary of the meeting of23 April 1951, the Chairman highlights inhis comments to the draft of 7 May 1951

that: �The definition of �force� in paragraph1(a) of Article I has been altered so as tomake the Agreement applicable, unless thereceiving State and the sending State agreeotherwise, to all forces of one Party presentin the territory of another Party in theNorth Atlantic Treaty area in connectionwith their official duties, and not only toforces on NATO duty. The reason for thisis the administrative inconvenience of dis-tinguishing between forces on NATO dutyand those not on such duty.� Thereby theBelgian reference to the possible limitationsimplied by the spirit of the SOFA seems tohave been overruled by the wish to createan omnibus arrangement that covers allsending and receiving of forces within thegeographical area of the SOFA, no matterif it arises out of the general (bi- and multi-lateral lateral) military co-operation amongthe Allies or it is related directly to the co-operation within the Alliance. A rule of as-sumption has been introduced: unless oth-erwise agreed between the parties involved,the NATO SOFA applies whenever the forcesof one Party to the SOFA are present in theterritory of another Party. The final draft

was circulated on 1 June 195167 - the textdefining �force� is identical to that of thesigned SOFA.

If reference to the North AtlanticTreaty area establishes that the SOFA ap-plies whenever forces of an Ally are presentin the territory of another Allied State,unless otherwise agreed between the twoparties, then, what is the meaning of add-ing that the force is to be present �inconnection with their official duty�?Lazareff68 classifies this criterion as �es-sential� and argues that the NATO SOFAonly applies to forces on NATO duty.Lazareff points out that it is special tothe NATO SOFA, if compared to, forinstance, the U.S.-Japan Agreement and theU.S.-West Germany Agreements to link thepresence to �official duties�. He explainsthat the origin of the requirement is notthat it was regarded inappropriate to ap-ply the NATO SOFA in all cases, butrather that a number of European coun-tries already at the time of negotiatingthe NATO SOFA had concluded (non-NATO related) agreements on transit andmanoeuvring of troops (the Benelux Pow-

58

ers). Lazareff further argues that althoughit is not stated clearly, it is �logically im-plied� that the official duties referred tomust be �NATO duties� since: �The wholepurpose of the SOFA being, indeed, todefine the status of the Forces of the Par-ties to the North Atlantic Treaty, it seemsobvious to us that it can only apply toForces on NATO duty.�69 But, whereasthe Benelux co-operation and the requestto specifically exempt military personnelaccredited to embassies in the ReceivingState from the NATO SOFA, was the rea-son for adopting the escape clause, thediscussions of the Working Group, assummarised above, does not lead to theconclusions proposed by Lazareff, on thecontrary. As the Chairman of the Work-ing Group states in his presentation ofthe draft Agreement as of 7 May 1951:�The definition of �force� in paragraph1(a) of Article I has been altered so as tomake the Agreement applicable, unless theReceiving State and the Sending State agreeotherwise, to all forces of one Partypresent in the territory of another Partyin the North Atlantic Treaty area in con-

nection with their official duties, and notonly to forces on NATO duty. The rea-son for this is the administrative incon-venience of distinguishing between forceson NATO duty and those not on suchduty.� The statement is not later challengedor contradicted by the delegations.

Then, why the reference to officialduties? One possible explanation couldbe that the remarks made by the Danishand Norwegian delegations that membersof a force present in the territory of an-other Ally only on leave could not beconsidered covered by the SOFA70 ledthe drafters to revise the wording in or-der to specify that the force had to beadmitted to the territory on official dutyfor the NATO SOFA to apply. This the-sis is supported if one looks at the Brus-sels Agreement, one of the formal start-ing points of the negotiations. The Brus-sels Agreement, Article 1, limits the appli-cation of the Brussels Agreement to forcesoperating in the execution of duties un-der the Brussels Treaty. This wording wasdiscussed and abandoned by the draftersof the NATO SOFA. But maybe the Brus-

sels Agreement, Article 2, paragraph 1,inspired the drafters that had to make state-ments and viewpoints meet after the meet-ing on 23 April 1951. The said Articlecategorises the members of a force intothree groups: personnel on permanentduty, personnel on temporary duty andregularly constituted units or formations.

4. Conclusion

The geographical application as well asthe categories of personnel to whom theNATO SOFA is to be applied is well de-scribed in literature, however, the func-tional application of the NATO SOFA isstill subject to some arguments.71

If one looks at the co-operation thatthe NATO SOFA is intended to support,it seems rational to assume that the NATOSOFA applies whenever Allies co-operate.The extensive military co-operation,whether it takes place as an officially la-belled NATO activity or as a result of thegeneral military co-operation that hasgrown out of the Alliance, allows the troopsto become acquainted with the geographi-

59

cal conditions that they might have tooperate in, in an Article 5 situation, and itpromotes the general co-operation anddefensibility of the Alliance in accordancewith Article 3 of the Washington Treaty.72

Rather than debate on �when�, it issuggested to apply a rule of assumption:when Parties to the NATO SOFA sendor receive forces, including individualmembers of a force, it is assumed thatthe NATO SOFA applies, no matter thenature of the visit or the stationing.73 Theproposed rule of assumption is to be un-derstood with the implied exception thatthe NATO SOFA does not apply if thestatus of the force/the member of the forceis defined by other arrangements74 andaccepted as such by the Receiving State (e.g.through a diplomatic accreditation). As thevisit is subject to the consent of the Re-ceiving State, that Party must be expectedto object to the default clause if it disagreeswith the assumption.

The same default position or rule ofassumption is suggested to be adopted forthe application of the PfP SOFA. Al-though repeating the general principle of

consent (preamble), the PfP SOFA relieson the text of the NATO SOFA � it ex-tends the geographical application of theNATO SOFA (Article II) and it does notadd any qualifying criteria for the appli-cation of the agreement. But the argu-ment offered for the functional applica-tion of the NATO SOFA may be reiter-ated: activities that are conducted in thespirit of NATO and the PfP are aimed atdeveloping and tightening the relationsbetween both the Allies and Partners, andit seems irrational to limit the applica-tion of the NATO (PfP) SOFA to onlythose events that are strictly defined as�PfP activities�. A narrow approach willlead to either less co-operation or morecomplicated procedures due to the needto negotiate interim agreements or paral-lel SOFAs, which anyway are not likely tolook very differently than the NATOSOFA. And, as receiving of foreign troopsis subject to the consent of the ReceivingState, that State retains the possibility torequest that separate arrangements areconcluded, excluding the personnel fromthe NATO SOFA.

1 Protocol between the Government of the Republic ofLatvia, the Government of the Republic of Lithuaniaand the Government of the Republic of Estonia concern-ing the status of the Baltic Battalion Headquarters andthe personnel of the Baltic Battalion (16 April 1998),Article 3.

2 Agreement between the Government of the Republicof Latvia, the Government of the Republic of Lithuaniaand the Government of the Republic of Estonia concern-ing the establishment of the Baltic Naval Squadron (16April 1998), Article 4.

3 Agreement between the Government of the Republicof Latvia, the Government of the Republic of Lithuaniaand the Government of the Republic of Estonia on theestablishment of the Baltic Air Surveillance Network(16 April 1998), Article II.

4 Agreement between the Government of the Republicof Latvia, the Government of the Republic of Lithuaniaand the Government of the Republic of Estonia concern-ing the Baltic Defence College (12 June 1998), ArticleV, and the Protocol between the Government of theRepublic of Latvia, the Government of the Republic ofLithuania and the Government of the Republic of Esto-nia concerning the status of the Baltic Defence Collegeand its personnel (14 June 1999), Article 9.

5 Adopted at the NATO Summit in Washing-ton, 1999.

6 1952 Paris Protocol on NATO InternationalMilitary Headquarters, 1952 Ottawa Agreementon the status of NATO and its national represen-tatives and international staff, and the 1994 Brus-sels Agreement on the status of third-party repre-sentatives to NATO.

60

7 Robert E. Harkavy, as quoted by JohnWoodliffe, The Peacetime Use of Foreign Military Instal-lations under Modern International Law, 1992, p. 15.

8 Serge Lazareff, Status of Military Forces underCurrent International Law, 1971, p. 7-8.

9 John Woodliffe, ibid, p. 15.10 Gordon B. Baldwin, The international Law of

the Armed Forces Abroad, Newport, 1980.11 The specifics of the agreements on jurisdic-

tion are described in Serge Lazareff, ibid, FirstPart, Chapter III, Section 4.

12 Vienna Convention on Diplomatic Relations,1961.

13 �In order more effectively to achieve the ob-jectives of this Treaty, the Parties, separately andjointly, by means of continuous and effective self-help and mutual aid, will maintain and developtheir individual and collective capacity to resistarmed attack.�

14 The term is used by Serge Lazareff, ibid, p. 8.With due regard to the development in the mili-tary co-operation after the dissolving of the War-saw Pact, and as the territorial sovereignty of theReceiving State is unaffected by �peaceful militaryoccupation� as defined above, the phrase �peace-ful military occupation� seems to be a contradic-tion in terms. The classical occupying power seeksto exercise control of the territory and take pos-session, including to exercise jurisdictional pow-ers (occupatio bellica), while conventional occupa-tion constituted by a legal act defines the divertedpowers of the occupying power and the occupiedstate, normally leaving to the occupied state boththe title and the exercise of its sovereignty. The

latter situation may have been the starting pointfor negotiating the stationing of allied forces insome European countries after WW2. However,both within the Alliance and in respect of thePartnership for Peace programme, the co-opera-tion lacks comparison to �occupation� and �gar-rison of forces� since no activity so far has in-cluded permanent garrisoning of troops, except insupport of Peace Support Operations. In thesecases, the stationing has been based on the consentof the receiving state and on separate agreements,but documents provided under the Partnershipfor Peace have been applied i.e. for the status offorces. In order to mirror today�s relations, the co-operation within NATO and the Partnership forPeace is in the following is referred to as �peace-time military co-operation�. This term is chosendue to the type of co-operation taking place withinthe Partnership for Peace and because the NATOStatus of Forces Agreement is required to be reaf-firmed in the event of hostilities to which the Wash-ington Treaty (the North Atlantic Treaty) applies(NATO SOFA, Article XV).

15 The following information is based on SergeLazareff, Second Part, Chapter I, Status of MilitaryForces under Current Iinternational Law, 1971, andthe NATO SOFA �Travaux Préparatoires�.

16 Agreement on the Status of the Armed Forcesof the Brussels Treaty Powers, 21 December 1949.

17 D-R(51) 3, Summary of a meeting of the Coun-cil Deputies (15 January 1951). Belgium, Canada,Denmark, France, Iceland, Italy, the Netherlands,Norway, Portugal, the United Kingdom, and theUnited States participated in the drafting.

18 The preparatory work of the NATO SOFA(and the Paris Protocol) is collected in a BlueBook issued by the U.S. Naval College (U.S. Na-val War College, International Law Studies,NATO Agreements on Status: TravauxPréparatoires, edited by Professor of Law JosephM. Snee, S.J., NAVPERS 15031, Vol. LIV, 1961).

19 One example is that in its 45th Annual re-port of the WEU Council to the WEU Assembly,the WEU Council recommends that a SOFA beadopted for the co-operation within the WEU,and another draft WEU recommendation from1998 suggests that the SOFA should be shapedover the NATO SOFA, see document 1625 as of10 November, 1998, REPORT submitted on be-half of the Political Committee by Mr. Urbain,Rapporteur, included in the Second Part of theForty-Fifth Annual Report of the WEU Councilto the WEU Assembly. The draft EU Status ofForces Agreement (10th draft of July 2003) doesin fact base itself on the NATO SOFA, but at thesame time it adopts different terms and attemptsto apply to a broader audience (headquarters as-signed to the EU and the EU Military Staff).

20 Questions and Answers on the NATO Statusof Forces Agreement, Public Services Division,U.S. Department of State (no 6, April 1956), asquoted by Serge Lazareff, ibid, p. 57.

21 The consent is free (Vienna Convention onthe law of treaties, 1969), and is entered into un-der the principle of sovereign equality and inde-pendence of all states as expressed in internationallaw and confirmed by the United Nations Char-ter, 1945, Article 2 (1).

61

22 Serge Lazareff, ibid, p. 71.23 In terms of NATO International Military

Headquarters, established under the Paris Proto-col, the consent of the Host State is confirmed ina Host Nation Agreement. The Agreement gener-ally elaborates on the immunities and privilegesof the Headquarters and its personnel, sets thepersonnel strengths and the procedures to beapplied in respect of co-operation with the HostState and any preconditions for the activities ofthe Headquarters.

24 John Woodliffe, ibid, p. 35.25 Some Partnership States may still require a

different procedure to be applied, many of themdue to the strict legal regimes adopted after theCold War.

26 References:n Protocol between the Government of the Republic of

Latvia, the Government of the Republic of Lithuaniaand the Government of the Republic of Estonia concern-ing the status of the Baltic Defence College and itspersonnel (14 June 1999), Article 12, 2, and Memoran-dum of Understanding between the Estonian, Latvianand Lithuanian ministries of defence concerning the op-eration, administration and funding of the Baltic De-fence College (11 December 1998), Section 8.n Memorandum of Understanding between the Esto-

nian, Latvian and Lithuanian ministries of defenceconcerning the operation, funding and administration ofthe Baltic Battalion (7 May 1999), Section 6.6.n Memorandum of Understanding between the Esto-

nian, Latvian and Lithuanian ministries of defenceconcerning the organisation, operation, funding and ad-ministration of the Baltic Naval Squadron (Septem-

ber 1999), Section 3.4.27 �Force� means the personnel belonging to

the land, sea or air armed services of one Con-tracting Party when on the territory of anotherContracting Party in the North Atlantic Treatyarea in connection with their official duties, pro-vided that the two Contracting Parties concernedmay agree that certain individuals, units or for-mations shall not be regarded as constituting orincluded in a �force� for the purpose of the presentAgreement.

28 As explained by the Chairman in MS-R(51)13, Summary Record of a meeting of the Work-ing Group on Status (23 April 1951).

29 Inserted in MS-D(51) 28, Status of ForcesAgreement � Revised Draft (27 April 1951), afterdiscussions in MS-R(51) 13 Summary Record ofa meeting of the Working Group on Status (23April 1951), which did, in fact, not touch on theissue of diplomatic personnel.

30 D-R(51) 41, Summary Record of a meeting ofthe Council Deputies, 24 May 1951.

31 Despite this statement, in the early 1960s theU.S. Court of Appeals for the District of Colum-bia raised the question of the formalities of anAgreement excluding personnel from the SOFA(for references, see Lazareff, ibid, p. 83, footnote34). A Belgian corporal serving as a secretary tothe Belgian Military Attaché to the U.S. and as-signed to the Belgian embassy under the ViennaConvention on Diplomatic Relations (1961) hadcaused a traffic accident, and the victim was claim-ing damages under the NATO SOFA Article VIII.The court decided that accrediting the corporal to

the U.S. in accordance with diplomatic proceduresdid not constitute an agreement in the under-standing of NATO SOFA Article I, Paragraph1(a), and that the corporal was subject to theNATO SOFA. The decision of the court seemscontroversial and out of line with the intentionsof the drafters of the SOFA. Some countries havesolved the issue by expressing in unilateral docu-ments, e.g. internal guides to the SOFA, that theNATO SOFA, in fact, does not apply to person-nel sent to serve under diplomatic regimes, in-cluding the Ottawa Agreement (e.g. the U.K.).

32 See MS-R(51) 13, Summary Record of a meet-ing of the Working Group on Status (23 April1951), par. 10 (leave) and 18 (transit).

33 Lazareff, ibid, pp. 80-82, and D-D(51) 269,Status of Forces Agreement � Memorandum bythe United Kingdom Deputy on ProvisionalImplementation and Claims Procedure (29 Octo-ber 1951), in which the U.K. declares her willing-ness to waive passport and visa requirements forpersonnel arriving at the U.K. on leave, providedthat the stay in the U.K. does not exceed 21 days,and that the person carries 1) military ID, and 2)a movement order, which indicates a) that theperson is on leave and b) the duration of theleave.

34 MS-D(51) 3, Status of Forces Agreement �United Kingdom Note on the Definition of �Con-tingent� in the Draft (07 February 1951).

35 See MS(F)-R(51) 1 Summary Record of aMeeting of the Working Group on Status (Finan-cial Subcommittee) (13 February 1951), and MS(J)-R(51) 1, Summary Record of a meeting of the

62

Working Group on Status (Juridical Subcommit-tee), (8 February 1951).

36 The differnt categories of military and para-military personnel are suggested to be dividedinto:n Reservists: Reservists belong to the armed

services, and this category qualifies, thus, to comeunder the NATO SOFA when they are perform-ing their military duties in a Receiving State. If areservist � in his/her private capacity - is residingabroad, he/she does not come under the NATOSOFA in that capacity, but their status will, onceperforming their military duties, be determined bythe NATO SOFA (�official duties�), see Ander-son/Burkhardt, The Handbook of The Law of VisitingForces � edited by Dieter Fleck (Oxford, 2001), p. 52.n Retired military personnel: The status of

this category is similar to that of Reservists. Re-tired personnel belong to the armed services andcan be reactivated. They will come under protec-tion of the NATO SOFA if they are performingtheir military duties in a Receiving State. If a re-tired member of a force is residing abroad, he/she does not come under the NATO SOFA inhis/her private capacity, but the status will, oncehe/she is performing military duties, be deter-mined by the NATO SOFA (�official duties�), seeAnderson/Burkhardt, ibid, pp. 52-53.n Paramilitary personnel: Paramilitary forces

are used in many NATO and PfP countries, ei-ther as special police forces (Gendamerie), as Res-cue Board or Border Guards. In some countriesthe units refer to the Ministry of Interior or to theMinistry of Justice. In times of crises or emergen-

cies the forces may, subject to national laws, betransferred to the military commander, and per-sonnel serving in the units may be on loan fromthe military structure. The question if such unitsare entitled to come under the NATO SOFA, ifthey are send to serve abroad, is raised in TheHandbook of the Law of Visiting Forces. According toWebster�s Handy Dictionary the reference to the �land,sea or air armed services� covers the navy, army andair force of a country. It seems thus that only thetraditional services are covered by the definitionin Article 1. It could, however, be argued thatwhen the armed services are augmented by para-military units, i.e. the authority of the units istransferred to the military line of command, theunits then fall under the definition as they fromthe time of transfer are integrated into (belong to)one of the said armed services, no matter if theunits are transferred for an exercise or a militaryoperation. This also seems to be the conclusionof Anderson/Burkhardt, ibid, p. 53.

37 MS-R(51) 13, Summary Record of a meetingof the Working Group on Status (23 April 1951),par. 12.

38 The Sending State is not obliged to receive aReceiving State national, despite that the personis employed by the Sending State, if the Receivingstate issues an expulsion order on the person.

39 The Sending State retains its right to exercisejurisdiction over members of its force, no matterif the member at the same time is a Receiving statenational.

40 A Sending State member of a force, who is atthe same time the national of the Receiving State,

is subject to taxation in the Receiving State.41 The Preamble also spells out the principle

that nationals of the receiving state do not enjoyany privileges or immunities under the NATOSOFA: the NATO SOFA only applies to forces,when they are in the territory of another Party:�Desiring, however, to define the status of suchforces while in the territory of another Party�.Under the Paris Protocol, nationals who are mem-bers of an International Military Headquartersenjoy the privileges granted under that Protocol,but not necessarily those granted under the NATOSOFA, see Serge Lazareff, p. 75, ibid.

42 MS-D(51) 3, Status of Forces Agreement �United Kingdom Note on the Definition of �Con-tingent� in the draft (7 February 1951), see BlueBook pp. 365-366. The Chairman of the WorkingGroup pointed this out also in D-R(51) 15, Sum-mary Record of a Meeting of the Council Depu-ties (2 March 1951), see Blue Book p. 129. See alsoMS-D(51) 3, Status of Forces Agreement � UnitedKingdom Note on the Definition of �Contingent�in the draft (7 February 1951), see Blue Book pp.365-366.

43 Lazareff, ibid, p. 94. More recent authors do notshare the sceptics, see Anderson/Burkhardt, ibid, p.55, who state that �It is a common view with theAlliance that the wording of the text is clear�.

44 MS-D(51) 3, Status of Forces Agreement �United Kingdom Note on the Definition of �Con-tingent� in the draft (7 February 1951), see BlueBook pp. 365-366.

45 MS-D(51) 3, Status of Forces Agreement �United Kingdom Note on the Definition of �Con-

63

tingent� in the draft (7 February 1951), see BlueBook pp. 365-366.

46 Lazareff, ibid, p. 88.47 MS(J)-R(51) 4, Summary Record of a Meeting

of the Working Group on Status, Juridical Sub-committee (16 February 1951), see Blue Book p. 99.

48 Lazareff, ibid, pp. 89-90, quoting Dr. RichardSchubert (Military Law review, July 1962). See alsoAnderson/Burkhardt, ibid, p. 55, who � slightlyconfusingly - state both that ��the employer neednot necessarily be the force directly, but may beassociated with government agencies supportingthe force�� and that �Individuals employed withother government organizations outside thearmed forces are not considered as falling withinthe definition of civilian component�.

49 Lazareff, ibid, pp. 90-91, summarises the Frenchand the U.S. practise (U.S.-Turkey Agreement (1954),U.S.-Japan Administrative Agreement (1952) � bothextent the definition. See also the practice underthe U.S.-Korea Agreement as quoted above andthe practise under the German SupplementaryAgreements.

50 D-D(51) 57, Status of Forces Agreement �Revised Draft (28 February 1951), see Blue Bookpp. 430-431, and the French comments in MS-D(51) 19, Status of Forces Agreement � Observa-tions by the French Government (7 April 1951),see Blue Book p. 463.

51 The SOFA requires citizenship of a State �Partyto the North Atlantic Treaty�. According toLazareff, ibid, p. 92, that means that the State mustbe a party to the North Atlantic Treaty, but itdoes not have to be a party to the NATO SOFA.

This can occur if the accession to the SOFA isvery time consuming, as was the case for the Fed-eral Republic of Germany (BRD). With the PfPSOFA another aspect is added: a PfP State na-tional may be recognised as a member of a civil-ian component from a PfP State, but he/she doesnot qualify to come under the NATO SOFA as amember of a NATO State civilian component.

52 Webster�s Handy Dictionary, Oxford Uni-versity Press, 1992.

53 Lazareff, ibid, p. 95.54 See also Anderson/Burkhardt, ibid, p. 58.55 See Max Johnson, The Handbook of The Law of

Visiting Forces � edited by Dieter Fleck (Oxford, 2001),p. 277. Max Johnson also describes the practiceon acknowledging dependants to personnel as-signed to NATO IMHQs or hired by a NATOIMHQ as international civilians.

56 MS(J)-R(51) 1, Summary Record of a meetingof the Working Group on Status, Juridical Sub-committee, (8 February 1951).

57 MS-D(51)5, Status of Forces Agreement � Re-draft of Articles I to VI (12 February 1951).

58 MS-D(51) 11/11(R), Status of Forces Agree-ment � Revised Text (Articles I-V, IX, XI-XIX) ofthe Draft (19/20 February 1951).

59 MS(J)-R(51) 6, Summary Record of a meetingof the Working Group on Status, Juridical Sub-committee, (22 February 1951).

60 D-D(51) 57, Status of Forces Agreement - Re-vised Draft (28 February 1951).

61 MS-D(51) 20, Status of Forces Agreement -Amendments Proposed by the United States (09April 1951).

62 MS-D(51) 21, Status of Forces Agreement -Amendments Proposed by the Netherlands (10April 1951).

63 MS-R(51) 13, Summary Record of a meetingof the Working Group on Status (23 April 1951).

64 MS-D(51) 28, Status of Forces Agreement -Revised Draft (27 April 1951).

65 MS-R(51) 18, Summary Record of a meetingof the Working Group on Status (01 May 1951).

66 D-D(51) 127, Status of Forces Agreement -Revised Draft (07 May 1951).

67 D-D(51) 138, Status of Forces Agreement -Final Draft, (01 June 1951.

68 Lazareff, ibid, p. 79.69 Lazareff, ibid, p. 80. The Handbook of the Law

of Visiting Forces contains contradictory statementson this matter. Chapter IV (Anderson/Burkhardt,p. 54) largely repeats the point of view offered byLazareff (the presence must somehow be associ-ated with the Alliance), whereas Chapter V (MaxJohnson, p. 263) suggests that the NATO SOFA isapplied as a default position.

70 MS-R(51) 13, Summary Record of a meetingof the Working Group on Status (23 April 1951).

71 See footnote 69. In NATO Legal Symposium2000, Nordwijk, hosted by the Netherlands, theapplicability of the NATO SOFA was also ad-dressed. Some of the newest members of the Alli-ance raised the point that national exercises con-ducted solely by one NATO State on the territoryof another NATO State should not fall under theSOFA. The main (and only?) reason for this be-ing that the NATO SOFA claims provisions con-fer parts of the financial liability on the Receiving

64

State, no matter if the Receiving State takes part inthe exercise. It has been a long and standing tradi-tion to conduct national, bilateral as well asmultinational exercises within the Alliance, as theunderstanding of NATO duties among the Alliesis closely related to the Washington Treaty, Ar-ticle 3. Since the conduct of exercises is subject toagreements between the Receiving State and theSending State (and sometimes also to payment),and since nothing would prevent the ReceivingState from monitoring and assisting in the plan-ning and use of the facilities, there seems to be nopractical or legal reasons to exclude such activi-ties from the NATO SOFA. See the conclusionfrom the Symposium: Documents of the Seminaron the NATO/Partnership for Peace Status ofForces Agreement, Noordwijk, the Netherlands,September 2000.

72 �In order more effectively to achieve the ob-jectives of this Treaty, the Parties, separately andjointly, by means of continuous and effective self-help and mutual aid, will maintain and developtheir individual and collective capacity to resistarmed attack.�

73 As proposed by Max Johnson, The Handbookof The Law of Visiting Forces � edited by Dieter Fleck(Oxford, 2001), p. 263.

74 I.e. Vienna Convention on Diplomatic Rela-tions, the Agreement on the status of NATO, na-tional representatives and international staff (Ot-tawa, 1951) or bilateral agreements.