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Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty, 28th August 1952 (200 UNTS 340), OXIO 270

North Atlantic Treaty Organisation [NATO]

Subject(s):
Immunity from jurisdiction, international organizations — Collective security — Competences of international organizations — International legal personality of international organizations

Core Issues

1. The legal personality of the North Atlantic Treaty Organization’s international military headquarters (IMHQ).

2. The rights and obligations of the IMHQ and Member States under the Protocol on the Status of International Military Headquarters set up Pursuant to the North Atlantic Treaty (‘Paris Protocol’).

3. Claims, legal proceedings, and the settlement of disputes under the Paris Protocol.

4. The privileges and immunities accorded to the IMHQ.

This headnote pertains to: Protocol on the Status of International Military Headquarters set up Pursuance to the North Atlantic Treaty, an instrument the text of which has been adopted in the framework of an international organization. Jump to full text

Background

The Protocol on the Status of International Military Headquarters set up Pursuant to the North Atlantic Treaty (‘Paris Protocol’ or ‘Protocol’) relates to the law of international organizations, as it defines the personality, privileges, and immunities of the North Atlantic Treaty Organization’s (NATO) international military headquarters (IMHQ).

With regard to its adoption history, following the signature of the North Atlantic Treaty in 1949, the Member States began to draft the Agreement between the Parties to the North Atlantic Treaty regarding the status of their forces (‘SOFA’). Late in the drafting process, the question was raised as to whether the SOFA would apply to IMHQ as well as to national forces. It was decided not to expand the SOFA to include the IMHQ, and to instead conclude a protocol.

Legally, the Paris Protocol is not a stand-alone document; as a protocol to the SOFA, it adapts many of the SOFA’s provisions. Due to the very nature of the headquarters, and the legal personality accorded, the Paris Protocol also has various substantive provisions not found in the SOFA.

Summary

The preamble of the Protocol set out the purpose of the Protocol, to ‘define the status’ of NATO’s IMHQ and the personnel thereof. [ref 1] It acknowledged the requirement to obtain the consent of the state to host an international military presence, ‘by separate arrangement’. [ref 2]

Legal Personality

Article II of the Protocol set out that the SOFA shall apply to allied headquarters. [Article II] These are defined in Article I of the Protocol as the supreme headquarters and those IMHQ immediately subordinate thereto. [Article I] The Protocol differentiated the ‘supreme headquarters’ from other IMHQ, because the former were each to have their own, distinct, juridical personality under Article X of the Protocol. Accordingly, the Supreme Headquarters Allied Powers Europe and the Headquarters of the Supreme Allied Commander Atlantic both have juridical personality under international law in the international and domestic domains. Article X made clear that a supreme headquarters has ‘the capacity to conclude contracts and to acquire and dispose of property’, and that it may delegate authority to immediate subordinate headquarters to ‘act on its behalf’ in this regard. [Article X]

Rights and Obligations

Under Article III of the Protocol, an allied headquarters shall be considered a ‘force’, for specific purposes of the SOFA as listed. [Article III] Article IV of the Protocol, covering the basic rights and obligations, provided that, in general, these can be determined by substituting IMHQ for the ‘sending state’ in the SOFA, with the exception of certain functions. [Article IV] For example, Article IV(a) made clear that the exercise of criminal and disciplinary jurisdiction shall be retained by the military authorities of the state to whose military law the person concerned is subject. [Article IV] In this regard, the Protocol therefore recognized that certain matters remain within the national domain.

Claims, Legal Proceedings, and the Settlement of Disputes

Through Article VI of the Protocol, the SOFA waiver of claims by Contracting Parties applies to the IMHQ, with various clarifications. [Article VI] Article XI of the Protocol provided that ‘a [s]upreme [h]eadquarters may engage in legal proceedings’. [Article XI] Article XV of the Protocol duplicated the SOFA dispute settlement procedure, such that ‘all differences between the [p]arties … or between any such [p]arties and any [a]llied [h]eadquarters relating to the interpretation or application of the Protocol shall be settled by negotiation’, except where express provision is made to the contrary. [Article XV] Unresolved questions are referred to the North Atlantic Council.

Privileges and Immunities

Article VII(1) of the Protocol provided that ‘these [h]eadquarters shall be relieved, as far as practicable, from duties and taxes’. [Article VII] Article XII of the Protocol made clear that the archives and other official documents are inviolable. [Article XII] Whilst Article XI(b) of the Protocol explicitly granted immunity from execution, the Protocol does not contain a specific clause on immunity from jurisdiction. [Article XI]

Analysis

The granting of privileges and immunities to international organizations is founded on the principle of functional necessity, so that the organization can exercise complete independence in its activities in fulfilment of the functions it has been assigned, although the extent to which they constitute customary international law remains a subject of debate, particularly immunity from jurisdiction.

The 1946 Convention on the Privileges and Immunities of the United Nations (‘1946 Convention’) explicitly stated that ‘the United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process’ (Article II 1946 Convention). Both the Paris Protocol and the Agreement on the status of the North Atlantic Treaty Organization, National Representatives and International Staff (‘Ottawa Agreement’) were developed just after the negotiation of the 1946 Convention, but whilst Article V of the Ottawa Agreement is very much a copy of the 1946 Convention, the Paris Protocol is silent on the matter.

In this regard, an observation was made in the travaux préparatoires on the inviolability of documents that also frames this dilemma: ‘[i]t can be understood that a sending state would have sovereign immunities but not, normally, a [s]upreme [h]eadquarters. How is this to be reconciled?’ (Snee 616). However, an answer is not found in the travaux préparatoires, nor in the Protocol itself.

The silence of the Protocol, versus the explicit reference in the Ottawa Agreement, does not per se suggest that an allied headquarters does not enjoy immunity, when viewed in light of customary international law, and in particular the principle of functional necessity. The corresponding inference is that the Paris Protocol implicitly provided allied headquarters with limited, but functional, immunity, as recognized by the District Court of Limburg: ‘applying the criterion laid down by the Netherlands Supreme Court in the Spaans judgment, JFCBS and SHAPE have functional immunity’ (Spaans v Iran-United States Claims Tribunal; Supreme Site Services GMBH and ors v Allied Joint Force Command Headquarters Brunssum & Supreme Headquarters Allied Powers Europe, para 4.23).

The principle of functionality is also evident in the granting, by Article VII(1) of the Protocol, of tax relief ‘as far as practicable’). [Article VII] As to the interpretation of ‘as far as practicable’, Italy’s representative commented that if the words ‘are interpreted as “meaning within the framework of existing legislation” this would appear to deprive paragraph 1 of this Article of its substance’ (Snee 642). In 1953, the language was interpreted by the North Atlantic Council, which expressed the intention being to provide ‘a comprehensive system of tax exemptions’ (Snee 656). This is, again, in the context of the principle of functionality, which can be highlighted by the comment of the United States’ representative that ‘[s]upreme [h]eadquarters could not be limited by the receiving [s]tate in the exercise of functions which it considered necessary’ (Snee 299).

Impact

The system of status agreements has served the NATO alliance effectively for more than sixty years. Whilst having been expanded with the Partnerships for Peace, there have been no attempts to change the foundational documents.

The Paris Protocol recognized the need for supplementation, and its Article XVI accordingly authorized the Supreme Headquarters to conclude supplementary agreements with the States Parties to the Paris Protocol [Article XVI]. In this way the Protocol, when applied in conjunction with international law, the NATO regulations, and supplementary agreements, provided an effective and efficient system for allied headquarters.

Reporter(s): Laura Green

Source text

Original Source PDF

The parties to the North Atlantic Treaty signed in Washington on 4th April, 1949,

Considering that international military Headquarters may be established in their territories, by separate arrangement, under the North Atlantic Treaty, and

Desiring to define the status of such Headquarters and of the personnel thereof within the North Atlantic Treaty area,

Have agreed to the present Protocol to the Agreement signed in London on 19th June, 1951, regarding the Status of their Forces:

Article 1

In the present Protocol the expression

  1. a.  'the Agreement' means the Agreement signed in London on 19th June, 1951, by the Parties to the North Atlantic Treaty regarding the status of their Forces;

  2. b.  'Supreme Headquarters' means Supreme Headquarters Allied Powers in Europe, Headquarters of the Supreme Allied Commander Atlantic and any equivalent international military Headquarters set up pursuant to the North Atlantic Treaty;

  3. c.  'Allied Headquarters' means any Supreme Headquarters and any international military Headquarters set up pursuant to the North Atlantic Treaty which is immediately subordinate to a Supreme Headquarters;

  4. d.  'North Atlantic Council' means the Council established by Article IX of the North Atlantic Treaty or any of its subsidiary bodies authorised to act on its behalf.

Article II

Subject to the following provisions of this Protocol, the Agreement shall apply to Allied Headquarters in the territory of a Party to the present Protocol in the North Atlantic Treaty area, and to the military and civilian personnel of such Headquarters and their dependents included in the definitions in sub-paragraphs a., b. and c. of paragraph 1 of Article III of this Protocol, when such personnel are present in any such territory in connection with their official duties or, in the case of dependents, the official duties of their spouse or parent.

Article III

1.  For the purpose of applying the Agreement to an Allied Headquarters the expressions 'force', 'civilian component' and 'dependent', wherever they occur in the Agreement shall have the meanings set out below:

  1. a.  'force' means the personnel attached to the Allied Headquarters who belong to the land, sea or air armed services of any Party to the North Atlantic Treaty;

  2. b.  'civilian component' means civilian personnel who are not stateless persons, nor nationals of any State which is not a Party to the Treaty, nor nationals of, nor ordinarily resident in the receiving State, an who are (i) attached to the Allied Headquarters and in the employ of an armed service of a Party to the North Atlantic Treaty or (ii) in such categories of civilian personnel in the employ of the Allied Headquarters as the North Atlantic Council shall decide;

  3. c.  'dependent' means the spouse of a member of a force or civilian component, as defined in sub-paragraphs a. and b. of this paragraph, or a child of such member depending on him or her support.

2.  An Allied Headquarters shall be considered to be a force for the purposes of Article II, paragraph 2 of Article V, paragraph 10 of Article VII, paragraphs 2,3,4,7 and 8 of Article IX, and Article XIII, of the Agreement.

Article IV

The rights and obligations which the Agreement gives to or imposes upon the sending State or its authorities in respect of its forces or their civilian components or dependents shall, in respect of an Allied Headquarters and its personnel and their dependents to whom the Agreement applies in accordance with Article II of the present Protocol, be vested in or attached to the appropriate Supreme Headquarters and the authorities responsible under it, except that:

  1. a.  the right which is given by Article VII of the Agreement to the military authorities of the sending State to exercise criminal and disciplinary jurisdiction shall be vested in the military authorities of the State, if any, to whose military law the person concerned is subject;

  2. b.  the obligations imposed upon the sending state or its authorities by Article II, paragraph 4 of Article III, paragraphs 5 a. and 6 a. of Article VII paragraphs 9 and 10 of Article VIII, and Article XIII, of the Agreement , shall attach both to the Allied Headquarters and to any State whose armed service, or any member or employee of whose armed service, or the dependent of such member or employee, is concerned;

  3. c.  for the purposes of paragraphs 2 a. and 5 of Article III, and Article XIV, of the Agreement the sending State shall be, in the case of members of a force and their dependents, the State to whose armed service the member belongs, or, in the case of members of a civiliancomponent and their dependents, the State, if any, by whose armed service the member is employed;

  4. d.  the obligations imposed on the sending State by virtue of paragraphs 6 and 7 of Article VIII of the Agreement shall attach to the State to whose armed service the person belongs whose act or omission has given rise to the claim or, in the case of a member of a civilian component, to the State by whose armed service he is employed or, if there is no such State, to the Allied Headquarters of which the person concerned is a member.

Both the State, if any, to which obligations attach under this paragraph and the Allied Headquarters concerned shall have the rights of the sending State in connection with the appointment of an arbitrator under paragraph 8 of Article VIII.

Article V

Every member of an Allied Headquarters shall have a personal identity card issued by the Headquarters showing names, date and place of birth, nationality, rank or grade, number (if any), photograph and period of validity. This card must be presented on demand.

Article VI

1.  The obligations to waive claims imposed on the Contracting Parties by Article VIII of the Agreement shall attach both to the Allied Headquarters and to any Party to this Protocol concerned.

2.  For the purposes of paragraphs 1 and 2 of Article VIII of the Agreement,

  1. a.  property owned by an Allied Headquarters or by a Party to this Protocol and used by an Allied Headquarters shall be deemed to be property owned by a Contracting Party and used by its armed services;

  2. b.  damage caused by a member of a force or civilian component as defined in paragraph 1 of Article III of this Protocol or by any other employee of an Allied Headquarters shall be deemed to be damage caused by a member or employee of the armed services of a Contracting Party;

  3. c.  the definition of the expression 'owned by a Contacting Party' in paragraph 3 of Article VIII shall apply in respect of an Allied Headquarters.

3.  The claims to which paragraph 5 of Article VIII of the Agreement applies shall include claims (other than contractual claims and claims to which paragraphs 6 or 7 of that Article apply) arising out of acts or omissions of any employees of an Allied Headquarters, or out of any other act, omission or occurrence for which an Allied Headquarters, or out of any other act, omissions or occurrence for which an Allied Headquarters is legally responsible, and causing in the territory of a receiving State to third parties, other than any of the Parties to this Protocol.

Article VII

1.  The exemption from taxation accorded under Article X of the Agreement to members of a force or civilian component in respect of their salaries and emoluments shall apply, as regards personnel of an Allied Headquarters within the definitions in paragraph 1 a. and b. (i) of Article 3 of this Protocol, to salaries and emoluments paid to them as such personnel by the armed service to which they belong or by which they are employed, except that this paragraph shall not exempt any such member or employee from taxation imposed by a State of which he is a national.

2.  Employees of an Allied Headquarters of categories agreed by the North Atlantic Council shall be exempted from taxation on the salaries and emoluments paid to them by the Allied Headquarters in their capacity as such employees. Any Party to the present Protocol may, however, conclude an arrangement with the Allied Headquarters whereby such Party will employ and assign to the Allied Headquarters all of its nationals (except, if such Party so desires, any not ordinarily resident within its territory) who are to serve on the staff of the Allied Headquarters and pay the salaries and emoluments of such persons from its own funds, at a scale fixes by it. The salaries and emoluments so paid may be taxed by the Party concerned but shall be exempted from taxation by any other Party. If such an arrangement is entered into by any Party to the present Protocol and is subsequently modified or terminated, Parties to the present Protocol shall no longer be bound under the first sentence of this paragraph to exempt from taxation the salaries and emoluments paid to their nationals.

Article VIII

1.  For the purpose of facilitating the establishment, construction, maintenance and operation of Allied Headquarters, these Headquarters shall be relieved, so far as practicable, from duties and taxes, affecting expenditures by them in the interest of common defence and for their official and exclusive benefit, and each Party to the present Protocol shall enter into negotiations with any Allied Headquarters operating in its territory for the purpose of concluding an agreement to give effect to this provision.

2.  An Allied Headquarters shall have the rights granted to a force under Article XI of the Agreement subject to the same conditions.

3.  The provisions in paragraphs 5 and 6 of Article XI of the Agreement shall not apply to nationals of the receiving States, unless such nationals belong to the armed services of a Party to this Protocol other than the receiving State.

4.  The expression 'duties and taxes' in this Article does not include charges for services rendered.

Article IX

Except in so far as the North Atlantic Council may decide otherwise,

  1. a.  any assets acquired from the international funds of an Allied Headquarters under its capital budget and no longer required by the Headquarters shall be disposed of under arrangements approved by the North Atlantic Council and the proceeds shall be distributed among or credited to the Parties to the North Atlantic Treaty in the proportionsin which they have contributed to the capital costs of the Headquarters. The receiving State shall have the prior right to acquire any immovable property so disposed of in its territory provided that it offers terms no less favourable than those offered by any third party;

  2. b.  any land, buildings or fixed installations provided for the use of an Allied Headquarters by the receiving State without charge to the Headquarters (other than a nominal charge) and no longer required by the Headquarters shall be handed back to the receiving State, and any increase or loss in the value of the property provided by the receiving State resulting from its use by the Headquarters shall be determined by the North Atlantic Council (taking into consideration any applicable law of the receiving State) and distributed among or credited or debited to the Parties to the North Atlantic Treaty in the proportions in which they have contributed to the capital costs of the Headquarters.

Article X

Each Supreme Headquarters shall possess juridical personality; it shall have the capacity to conclude contracts and to acquire and dispose of property. The receiving State may, however, make the exercise of such capacity subject to special arrangements between it and the Supreme Headquarters or any subordinate Allied Headquarters acting on behalf of the Supreme Headquarters.

Article XI

1.  Subject to the provisions of Article VIII of the Agreement, a Supreme Headquarters may engage in legal proceedings as claimant or defendant. However, the receiving State and the Supreme Headquarters or any subordinate Allied Headquarters authorized by it may agree that the receiving State shall act on behalf of the Supreme Headquarters in any legal proceedings to which that Headquarters is a party before the courts of the receiving State.

2.  No measure of execution or measure directed to the seizure or attachment of its property or funds shall be taken against any Allied Headquarters, except for the purposes of paragraph 6 a. of Article VII and Article XIII of the Agreement.

Article XII

1.  To enable it to operate its international budget, an Allied Headquarters may hold currency of any kind and operate accounts in any currency

2.  The Parties to the present Protocol shall, at the request of an Allied Headquarters, facilitate transfers of the funds of such Headquarters from one country to another and the conversion of any currency held by an Allied Headquarters into any other currency, when necessary to meet the requirements of any Allied Headquarters.

Article XII

The archives and other official documents of an Allied Headquarters kept in premises used by those Headquarters or in the possession of any properly authorized member of the Headquarters shall be inviolable, unless the Headquarters has waived this immunity. The Headquarters shall , at the request of the receiving State and in the presence of a representativeof that State, verify the nature of any documents to confirm that they are entitled to immunity under this Article.

Article XIV

1.  The whole or any part of the present Protocol or of the Agreement may be applied, by decision of the North Atlantic Council, to any international military Headquarters or organization (not included in the definitions in paragraphs b. and c. of Article I of this Protocol) which is established pursuant to the North Atlantic Treaty.

2.  When the European Defence Community comes into being, the present Protocol may be applied to the personnel of the European Defence Forces attached to an Allied Headquarters and their dependents at such time and in such manner as may be determined by the North Atlantic Council

Article XV

All differences between the Parties to the present Protocol or between any such Parties and any Allied Headquarters relating to the interpretation or application of the Protocol shall be settled by negotiation between the parties in dispute without recourse to any outside jurisdiction. Except where express provision is made to the contrary in the present Protocol or in the Agreement, differences which cannot be settled by direct negotiation shall be referred to the North Atlantic Council.

Article XVI

1.  Articles XV and XVII to XX of the Agreement shall apply as regards the present Protocol as if they were an integral part thereof, but so that the Protocol may be reviewed, suspended, ratified, acceded to, denounced or extended in accordance with those provisions independently from the Agreement.

2.  The present Protocol may be supplemented by bilateral agreement between the receiving State and a Supreme Headquarters, and the authorities of a receiving State and a Supreme Headquarters may agree to give effect, by administrative means in advance of ratification, to any provisions of this Protocol or of the Agreement as applied by it.

In witness whereof the undersigned Plenipotentiaries have signed the present Protocol. Done in Paris this 28th day of August 1952, in the English and French languages, both texts being equally authoritative, in a single original which shall be deposited in the archives of the Government of the United States of America. The Government of the United States of America shall transmit certified copies thereof to all the signatory and acceding States.

Source: North Atlantic Treaty Organization [http://www.nato.int/cps/en/natohq/official_texts_17300.htm] Last updated: 14 Oct. 2009