Individual Status and Individual Rights Under the NATO Status of Forces Agreement and the Supplementary Agreement with Germany

• Author: by Captain David S. Gordon
• Pages: 03

This artzele examines indimdual status as a member ojthe forces. a member oj the civiltan component. and as a dependent under the NATO Status of Forces Agreement (SOFA) and the Supplementary Agreement with Germany. Status under the SOFA i s compared with the stafw oj aliens abroad and with that of diplomatic and eansular personnel. Whether or not the SOFA creates international indizidual rights i s also discussed. The article concludes that granting SOFA status is a socereiga act ojthe sending state, which it mag perform due to the receiving state's limited waiver ojterritorial sorereignty. The SOFA creates no zndinidual rights because SOFA status mists to jaeili-late the sendingstats'sfoiorees military mission, not to benefit individuals.

* The opinians and Concluhns expressed hereinmethoseof theauthar anddonot neee~~aiilyiefleetthe vierJofTheJvdgeAdvocateG~neral'sSehml. theDepartment a! the Army, or any other governmental entity. This sr~iele is baaed upon B paper pmmted in partial fulfillment of the requirements af the 31st Judge Adsocate Officer Gradusre Coruse

Judne Adiocate General's Corm United States arm^ Currently sssisned as

e n tdProvidr Seruzces Amis .Yotionol Borders. 7 Gn. J Int'l & Comp. L 72i (19T'i)

Member of the bars of the state of Georms and the U.S Supremo Court.

1. INTRODUCTION

   Between the signing of the NATO Status of Forces Agreements (SATO SOFA) in 1951 and its entry into force for the United States m 1953, one writer published a preliminary e\aluatm of the new agreement:

   Examination of this "Status of Forces Agreement" indicates that it was made not to establish undue privileges and immunities for the farces ofnending states within the territory of receiving states. but only to protect the sending State and its farces from undue expense in regard to taxation where domicile is not intended. customs dutieson goods imparted only for the performance ofofficialduties. and to maintain for the sending state jurisdiction over offenses which are primarily the interest of that state.2

   Since that time, the SOFA has proven to be an unique agreement in the history of international law in its impact on both individuals and governments. The principles intheSOFAandagreementsstemming from it, particularly the Supplementary Agreement with the Federal Republic of germ an^.^ have governed the liws af countless SATO service members civilian employees. and their dependents during tours of overseas service. The provisions of the SOFA have likewise had their impact an hundreds of German. French. Italian, Belgian. British, Dutch, andother local communitiejanduponthou-sands of local national civilians living and working in the areas nhere NATO troops have been stationed. The ?.TAT0 SOFAdid not redraw the map of Europe, but it has fundamentally changed the ways European and North American gorernments deal with one another and with one another's armed forces. In it. theseveral saver. eign powers waive their inherent powers over persons and act located within the borders of their territories across a spectrum and on a scale never before seen mnce the rise of the European nation-states.'

   lAueernent between the Parties mfhe K'arfh AilantieTrestsresardlnrthoStatul of Their Farces. June 19. 1951, 2 US

   'I

   %e S Laiareff Statui of ilhiari. Fareei Under Current Internatma1 Law 8 18

   1792 TI A S No 2846 199 U.N T.S 67

   Supplementary Agreement]

   11911)

   19831 INDIVIDUAL STATUS AND INDIVIDUAL RIGHTS

   The SOFA agreements are pragmatic documents designedtn ease the functioning of a military force abroad. They set forth the rights and obligations of the forces and personnel sent in fulfillment of the obligations undertaken for the defenseof Europe in the North Atlantic Treaty5 in the day-to-day dealings with the peoples and governments of the host nations. They create numerous privileges and exceptions to the power of the receivingstate which greatly benefit those individuals eligible for them. This article will examine the rules and practices lnvolved in determining who receives status as a member of the force. member of the civilian component, or as a dependent under the SOFA and Supplementary Agreement, haw that status is conferred on individuals, how it msy be lost, and whether or not the agreements create any individual rights enforceable under international law. This examination will look at other types of individual status under international law, and, by camparmg them with status under the SOFA agreements. will attempt to develop a theory of SOFA status. Before examining the nature of individual status, however, it is useful to set out the various privi. leges eligible individuals may have under the SOFA and Supplementary Agreement.

   11. BENEFITS OF SOFA STATUS

   Status under the SAT0 SOFA conveys numerous benefits Members of the force are exempt from passportand\,isaregulations and immigration inspection on entering or leaving the territory of the receiving state.6 While members of the civilian component and dependents are required to have a passport," they may be otherwise exempt from these regulations.6 Members af the farce are likewise exempt from host country alien registration requirements as wellas 1au.s governing the control of aliens.'Members ofthe civilian eomponent and dependents are not necessarily exempt from alien registration and control policies under the terms of the SOFA.Io but may be exempt in various host countries, such as the Federal Republic of Germany A member of a force or civilian component may import personal effects and furniture free of duty for the term of Service in

   %North Atlantic Treaty between the United Starenof Amenca and Other Govern-ments. April 4, 1949 63 Stat 221. T.1.A S No 1964. 34 U N.T.S 243 (entered into force August 24. 19491 [hereinafter North Atlantic Treaty]

   %AT0 SOFA mt III(11.Id. *tart II1I3). Lnzarefl. supm note 4, at 114'Id at 113.16 There IS noriaarequir~mentlarcivilian c~mponentpersonn~larfor #KAT0 SOFA, ut. III(1).lJLazareff ~ w i a note 4, at 114.16

   dependents in Germanp, SupplPmentary Agreement. art. 6

   the receiving state, upon arrival in thereceiringstateor at the time of the arrival of dependents." In Germany, this right to duty-free importation of personal effects exists throughout the individual's tour of service in the Federal Repubiic.lz Members of the force or civilian component may import their private motor vehicles free of duty. provided the vehicles are for their personal use or the use of their dependents.la All goods imported free of duty may be likewise re-exparted freely." Under the SOFA, privately awned vehicles are normally registered by the authoritiesof thereeeivingstate.16 Under the Supplementary Agreement with Germany. the sending states' forces are permitted to perform their awn vehicle inspection and registration procedures.16 The host country must either accept as valid driver's licenses issued by the sending state or issue driver's licenses to members ofthe force, civilian component, anddependents without requiring any form of driving examination.1: The hostcauntry may require personnel hwingstatus under the SOFA to pay road taxes an their motor vehicles.le However, the Supplementary Agreement makes such vehicles exempt from German road taxes,19 and agreements with other KAT0 countries may exempt one or more vehicles from that country's road tax.l0

   One of the principal benefits gained by haring status under the SOFA is that such persons may make purchases of duty and tax free goods from sending state sales outlets. such as post exchanges, commissaries. and eating facilities Some such items purchased duty and tax free, such as gasoline. liquor. tobacco. andather items which are highly taxed m the receiving state, are rationed pursuant to agreements between the sending state and the host nation authori"SAT0 SOFA. art XIiI) Sate that Article XI(1) reaffirms the avthorlfi of the receiiine~fate to repulare import8 and expartr by SOFA perionnel exee~tu herefhaf

   authority id exme~di waived

   ~"Supplementnrs Agreement, art 10>-SAT0

   SOFA. art IY. Supplementary Agreement, B P ~

   "XATO SOFA. art XI(6).

   IsSupplementar) Agreement. am 68. L e art 68. Protocol af Signature to the Supplementary Agreement para. Zidl Lheieinaffer Protocol of Sn~narure]

   ErFar example perwnnel ampned to XATO-SHAPE Support Groups (U.S.) tn Belgium are exempt from the Belgian road ~ B X

   on m e pr!vsfel) ouned 1,ehlcle

   Agreement between the Supreme Headquarters Allied Powers, Europe and the Kingdom of Belgium on the Special Conditions Applicable the Estsbllihment and Operation of thin Headquarteraon theTerrltori of theKingdamof Belgium ISHAPE- "SAT0 SOFA, ail

   ties.21 In addition to being able to purchase goods tax and duty free from sending State's outlets, personnel with SOFA status are iike-wise permitted Mpurchasegoodandservicesfromthelocalecanomyunder the same conditions as would be applicable to local natianals.Q$ Personnel having SOFA status are permitted to send and receive mail through the Army Post Office system (APO) which permits the mailing of letters and packages at sending state domestic rates to and from the receivingstate andthesending~tate.~'APOprivileges frequently makeit possiblefor personnel toimprt intothereceiving state goods from the sending state duty free.25

   Membersof the force and thecivilian component areexempt from all taxes an income received from the government of the sending state.26 Additionally, they are exempt from taxes imposed by virtue of residing in or being domiciled in thereceivingstate including, but not limited M, taxes on movableproper~.l'h'ormally personnelwith SOFA status will not be exempt from indirect taxes on gmds and services, such as value added taxes.28

   All personnel havingstatusundertheSOFAhave aduty torespect the lauw of the host natian.~$AAllpersonnel granted SOFA status are subject to the criminal jurisdiction of the receiving ~tate.3~

   Because

   of United States Supreme Court decisions indicating that military...