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Oxford Law Citator

Part II Commentaries to Typical Sofa Rules, 31 Territorial Applicability

Frank Burkhardt

From: The Handbook of the Law of Visiting Forces (2nd Edition)

Edited By: Dieter Fleck

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Published in print:: 12 April 2018

ISBN:: 9780198808404

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Subject(s):: Military assistance — Military matters — Peace keeping

(p. 418) 31 Territorial Applicability

Para. 2 UN Model SOFA

(2) Unless specifically provided otherwise, the provisions of the present Agreement and any obligation undertaken by [Government]¹ or any privilege, immunity, facility or concession granted to the United Nations peace-keeping operation or any member thereof apply in [the area of operations/territory] only.

Art. XX NATO SOFA

1. Subject to the provisions of paragraphs 2 and 3 of this Article, the present Agreement shall apply only to the metropolitan territory of a Contracting Party.
2. Any State may, however, at the time of the deposit of its instrument of ratification or accession or at any time thereafter, declare by notification given to the Government of the United States of America that the present Agreement shall extend (subject, if the State making the declaration considers it to be necessary, to the conclusion of a special agreement between that State and each of the sending States concerned), to all or any of the territories for whose international relations it is responsible in the North Atlantic Treaty area. The present Agreement shall then extend to the territory or territories named therein thirty days after the receipt by the Government of the United States of America of the notification, or thirty days after the conclusion of the special agreements if required, or when it has come into force under Article XVIII, whichever is the later.
3. A State which has made a declaration under paragraph 2 of this Article extending the present Agreement to any territory for whose international relations it is responsible may denounce the Agreement separately in respect of that territory in accordance with the provision of Article XIX.

I. General

While the territorial applicability of the UN Model SOFA is limited to the area of operations, unless agreed otherwise, the Agreement Between the Parties of the North Atlantic Treaty Regarding the Status of Their Forces (NATO SOFA) applies only in ‘the metropolitan territory’ of any Party which may, however, extend its applicability by unilateral declaration to ‘any of the territories for whose international relations it is responsible in the North Atlantic Treaty area’. This requires a closer look not only at Art. XX, para. 1 NATO SOFA but also at Art. 6 of the North Atlantic Treaty,² as modified by the accession of Turkey the provision determining that an armed attack on one or more of the Page Id: 418References(p. 419) Parties (which under Art. 5 shall be considered an attack against them all) is deemed to include an armed attack:

(i) on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, on the territory of on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;
(ii) on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

It was at the request of the British Delegation that the applicability of the NATO SOFA is limited in Art. XX para. 1 to the metropolitan area of each Member State. The UK had indicated that otherwise it would have met grave problems with respect to its colonies. With some of the colonies there were bilateral agreements in force which the UK did not want to alter; with respect to other areas the UK’s ratification would have had to be delayed until the local authorities’ consent could have been obtained. In paras. 2 and 3 an opportunity was provided to extend the territorial scope. The British proposal was supported by Canada, France, and Portugal who foresaw similar problems.³

The Tropic of Cancer is often used as the Southern boundary of the North Atlantic area as limitation, not only in respect of the fourth but also of the first alternative of Art. 6(i) of the North Atlantic Treaty. But the authentic English and French texts of this provision do not allow such a conclusion. The metropolitan territory of any Member States even beyond the Tropic of Cancer is protected under Art. 6(i). The second alternative, which in the meantime has become obsolete, also supports this view, as the former Algerian Departments of France extended the applicability of the North Atlantic Treaty not only to the African continent but also southwards beyond the Tropic of Cancer.

II. Applicability of NATO SOFA in Specific Areas

The reach of the ‘metropolitan territory’ of the States Parties to the NATO SOFA and the ‘North Atlantic Treaty area’ shall be addressed now in the light of Art. 6 of the North Atlantic Treaty.

1. The territory of any of the Parties

This first alternative of Art. 6(i) raises certain questions pertaining to the following examples:

(a) Canada

Surprisingly, neither Art. I nor Art. XX NATO SOFA give a definition for ‘metropolitan territory’. As has already been pointed out, the provision was inserted at the request of the UK delegation, supported especially by Canada. The Canadian delegation referred, in (p. 420) this context, to the situation in Gander, a military base on the island of Newfoundland.⁴ Newfoundland only became a Canadian province as of 31 March 1949, up to then it was a British dominion. In the Schedule annexed to the Newfoundland Act of 23 March 1949, Gander Airport, as well as other military installations, were transferred to Canada. The Newfoundland Act and its Schedule do not contain any provisions concerning a special status for the new province. Hence, it may be concluded that the Canadian government regarded the extension of the SOFA as problematic only in the period of transition. Now, more than 50 years after regarding the time elapsed since the accession of Newfoundland, these problems should have disappeared. Newfoundland is, since 6 December 2001, together with Labrador, a Canadian province like all other provinces and hence an integral part of metropolitan Canada. Therefore there is no reason not to apply NATO SOFA in Gander. With respect to Canada, no other areas are problematic, and it has to be emphasized that there is no difference in the applicability of NATO SOFA between the Canadian provinces and territories since both are part of metropolitan Canada.

(b) France

Due to the provisions in the French Constitution (in particular Arts. 72 and 72–3) all French overseas departments and territories—although having varying legal status—are integral parts of the French Republic and hence being considered as metropolitan territory. Consequently Art. 6(i) NATO Treaty and Art. XX, para. 1 NATO SOFA apply.

(c) Germany

A special situation arose with regard to Germany. The Federal Republic of Germany joined NATO on 6 May 1955. At about the same time the Warsaw Pact including the German Democratic Republic (GDR) with its five provinces was formed.⁵ Within the framework of the German reunification in 1990 the GDR left the Warsaw Pact.⁶ Before that time only the Western part of Germany (without Berlin) was included in the Treaty area. During the negotiations leading to the accession of the five GDR provinces to the Federal Republic of Germany, the question of their inclusion in the NATO area was controversial. For the Government of the Federal Republic of Germany it was of utmost importance to maintain its relations to NATO also after the reunification and this was confirmed in the ‘2+4 Treaty’ concluded between the two German States, France, the United Kingdom, the United States, and the USSR.⁷ On the other hand it was important for the Soviet side that on the territory of the former GDR even after the withdrawal of Soviet forces no non-German forces should be stationed.⁸ To solve the conflict between these two positions NATO SOFA Page Id: 420References(p. 421) should not have been extended to the territory of the former GDR. This was agreed upon within the framework of the contractual regulations between the governments of the Federal Republic of Germany and the GDR (‘Einigungsvertrag’).⁹ It was clear at the same time that members of foreign forces could be present on a non-permanent basis on the territory of the former GDR.¹⁰ The ‘2+4’ Treaty provided that ‘[f]oreign armed forces and nuclear weapons or their carriers will not be stationed in that part of Germany or deployed there’ (Art. 5, para. 3) and a common understanding was reached that ‘[a]ny questions with respect to the application of the word “deployed” as used in the last sentence of paragraph 3 of Article 5 will be decided by the Government of the united Germany in a reasonable and responsible way taking into account the security interests of each Contracting Party as set forth in the preamble.’¹¹

While the new Länder have become part of the Federal Republic of Germany, the Einigungsvertrag expressly excludes them from the NATO SOFA area.¹² An Exchange of Notes between the representatives of Germany and the other signatories of the Supplementary Agreement to NATO SOFA¹³ provides for the same status of their forces during agreed visits in the new Länder,¹⁴ as they enjoyed in the old Länder,¹⁵ with the exception that the settlement of any disputes should not involve the NAC, but be dealt with by a consultative body consisting of representatives from Germany and the Party or Parties directly concerned (para. 4, lit. d). For the forces of NATO Member States that were not Permanent Sending States in Germany, comparable regulations were adopted.¹⁶ In further agreements concluded between Germany and new NATO Member States it was stipulated that NATO SOFA is applicable throughout the whole of Germany.¹⁷

When the PfP SOFA was concluded, practical difficulties resulting from the territorial limitation of NATO SOFA to the old Länder were avoided by a German understanding formally deposited upon ratification.¹⁸

It may be concluded that NATO SOFA is applicable throughout the whole of Germany either directly or mutatis mutandis.

(d) The Netherlands

When signing NATO SOFA and the follow-on agreements concerning the accession of other States, the Netherlands did not make any statement concerning a geographical limitation of the application of the North Atlantic Treaty or NATO SOFA. It was only since the Page Id: 421References(p. 422) Agreement concerning the accession of the Czech Republic, Hungary, and Poland on 10 December 1997 that the Netherlands declared that the application of the North Atlantic Treaty and NATO SOFA should be limited to the Kingdom of the Netherlands in Europe.¹⁹

(e) Portugal

The Portuguese representative R. Ennes Ulrich when signing the NATO SOFA stated that the Agreement is only applicable to the territory of ‘Continental Portugal with the exclusion of the adjacent islands …’.²⁰ The rationale behind was the existence of the 1946 bilateral US-Portuguese Agreement concerning the use of Lajes Air Base on the Azores island of Terceira by the US Forces. Already in 1959/1960 Portugal began to build on Porto Santo, an island part of the Autonomous Region of Madeira, the airfield ‘Aeródromo de Manobra n.º 3’. This airfield was build through NATO funding and used by forces from different NATO nations This lead to the application of the NATO SOFA also there. As of 25 April 1976 the Azores and Madeira together with continental Portugal build a unified territory²¹ and therefore the restriction to Continental Portugal as metropolitan territory within the meaning of Art. XX, para. 1 NATO SOFA does not apply any more.

(f) Spain

On 30 May 1982 Spain joined NATO. The question whether the Canary Islands are part of the Spanish metropolitan territory can be clarified by looking into the Spanish Constitution,²² Section 137 of the Constitution provides that Spain‚ is ‘organized territorially into … provinces …’. Section 141, para. 4 of the Constitution states that the archipelagos are provinces. Therefore the Spanish Constitution itself stipulates that the islands have the same status as the provinces of continental Spain.

(g) Turkey

With the accession of Greece and Turkey to NATO on 18 February 1952 Art. 6(i) of the North Atlantic Treaty has been modified to confirm that Turkey as a whole has been incorporated into NATO territory. With this extension the question came up whether NATO Treaty covers also the Tomb of Suleiman Shah.²³ The tomb is located in Syria. Turkey considers it as a Turkish enclave and hence Turkish sovereign territory.²⁴ There is no formal position on the issue.

Page Id: 422References(p. 423) (h) United States of America

With respect to the North American continent there are two other areas whose inclusion in the NATO Treaty area is under dispute: Hawaii and the Aleutian Islands. When the North Atlantic Treaty was concluded in Washington, DC on 4 April 1949, as well as with the conclusion of the NATO SOFA on 19 June 1951 the United States of America consisted of 48 Federal States. The territory of the US was enlarged by the acceptance of Alaska as the 49th Federal State on 3 January 1959²⁵ and Hawaii as the 50th Federal State on 21 August 1959.²⁶ The question whether Hawaii and the Aleutian Islands can be subsumed under Art. 6 of the North Atlantic Treaty, has a direct impact on the discussion under Art. XX NATO SOFA. Art. 6 of the North Atlantic Treaty refers to the ‘territory of any of the Parties in Europe or North America’. This definition could be read as ‘dynamic’; that is, the area covered by the Treaty grows when the territory of a Member State is enlarged, or as ‘static’, referring only to the status quo when the Treaty was originally signed, subject to changes caused by the accession of a new Member. The Alliance was a long-term engagement of the Parties. If the Treaty had to be to be altered every time the territory of a Member was changed, requiring the consent of all Members, this would be time-consuming. Especially if only minor changes occur, there would be considerable disproportionality between the efforts necessary and the enlargement made.

The founding document of NATO is a living instrument. In the interest of all Parties, Art. 6 must be interpreted as a dynamic provision. Acquired territory becomes a part of the Treaty area, provided it fits the definition set out in Art. 6 of the Treaty and unless no declaration is being made to the contrary. This view is in line with the Vienna Convention on the Law of Treaties. In principal all legal provisions so far effective and all international treaties are with the moment of the acceding State’s joining are applicable in the now enlarged territory (Art. 29).²⁷ While the US have signed but not yet ratified this Treaty, Art. 29 contains a customary principle that without a statement to the contrary international treaties are applicable in the whole territory of a country.

Positions to the contrary were taken by NATO’s Legal Adviser G. Guillaume in a memorandum dated 26 May 1965,²⁸ by Chr. Chapman in a memorandum dated 9 January 1967²⁹ and NATO’s Legal Adviser E. Lejeune in a memorandum dated 9 September 1968.³⁰ The argument was made that, since the Hawaiian Islands were neither a part of the continent of North America nor situated north of the Tropic of the Cancer, they were not included in the Treaty area, although they had acquired statehood in 1959. These views do, however, not reflect the fact that it is up to the discretion of a State to decide what it considers to be metropolitan territory. The United States Congress ‘declared (Hawaii) admitted into the Union on an equal footing with the other States in all respects whatever …’.³¹ Similar declarations were made with respect to Alaska with the Aleutian Islands.³² The location of Hawaii with its main part south of the Tropic of Cancer does not have any relevance either because this restriction only refers to the fourth alternative of Art. 6(i) NATO Treaty only and not to its first alternative.

Page Id: 423References(p. 424) 2. Algerian departments of France

Since Algeria gained its independence from France on 5 July 1962, the second alternative of Art. 6(i) of the North Atlantic Treaty became obsolete. This was confirmed in a statement of the NATO Council of 16 January 1963.

3. Islands in the North Atlantic area north of the Tropic of Cancer

The structure of Art. 6(i) NATO Treaty shows that the limitation formed by the Tropic of Cancer does not apply to islands, which are integral parts of the Parties to the NATO Treaty. Therefore, islands being located north of the Tropic of Cancer and building an integral part of the territory of the Parties do not fall under the fourth alternative of Art. 6(i) NATO Treaty.³³

Irrespective thereof the wording ‘North of the Tropic of Cancer’ is the only definition in the North Atlantic Treaty not requiring further interpretation.³⁴

(a) Greenland and Faeroe Islands

Another controversial area is the island of Greenland. Greenland was a colony of Denmark until 1953, but as far as can be seen from the archives, no declaration under Art. XX NATO SOFA had been made. However, the US and the Kingdom of Denmark had agreed, in Art. 10 of a bilateral agreement which entered into force on 8 June 1951, that Arts. VII, VIII, and IX of the SOFA should be applicable as soon as it came in force. This defence treaty regulates in principle the use of Thule Air Base by the US Forces. Nevertheless, Greenland did not become part of the ‘SOFA area’ until 1953. In 1979, Greenland was granted an autonomy status that does not apply to international or defence relations. Indeed, the United States and Denmark agreed to supplement the defence treaty and to confirm explicitly the application of NATO SOFA.³⁵ This Agreement was signed on the Danish side by the Government of the Kingdom of Denmark including a representative of the Greenland Home Rule Government. The fact that Greenland left the EEC in 1985, following a referendum, does not affect the applicability of the NATO SOFA. Yet there was never a formal notification to this end by Denmark to the US Government in accordance with Art. XX, para. 2 NATO SOFA.

The situation regarding the Faeroe Islands is unclear. The Faeroese Parliament (Løgting) declared the islands in 1952 to be neutral. Despite this there have been NATO installations on the islands, but non-Danish military personnel has never been stationed on the islands.³⁶ In 2005 the Danish Foreign Minister and the Prime Minister of the Faeroe Islands have agreed that the Faroese Government has to be involved in all matters of foreign and security policy that affect the Faeroe Islands.³⁷

Page Id: 424References(p. 425) (b) British Overseas Territories

Gibraltar is a British Overseas Territory in Europe.³⁸ As it is not part of the metropolitan area of the United Kingdom, the NATO SOFA could only be applicable there if the UK had submitted a declaration under Art. XX, para. 2 of the NATO SOFA. The only file dealing with Gibraltar that could be found in the NATO archives (NISCA 2/8/1) relates exclusively to the question of the territorial applicability of the Paris Protocol, had it been extended in accordance with Art. 16 of the Paris Protocol and Art. XX, para. 2 of the NATO SOFA. According to a memorandum by E. Lejeune, the Legal Office has not addressed the question of Gibraltar since 16 March 1966.³⁹ There is no evidence of a declaration under Art. XX, para. 2 NATO SOFA. Moreover, the documentation concerning the accession of Spain to NATO indicates that at the time Spain joined the Alliance the tensions between Spain and the UK and the foreseeable diplomatic repercussions such declaration would have been inadvisable.⁴⁰ Yet, the British Government had extended the application of NATO SOFA to Gibraltar by Act of Parliament.⁴¹

In 1951 the British Overseas Territories Bahamas (partially), Bermuda, Cyprus, and Malta as well as the Crown Dependencies Channel Islands and the Isle of Man were eligible under Art. 6(i) of the North Atlantic Treaty. The Bahamas⁴² and Malta⁴³ became in the meantime independent. The same applies for Cyprus⁴⁴ but the United Kingdom retained the two Sovereign Base Areas of Akrotiri and Dhekelia.

Currently, Bermuda, the Sovereign Base Areas of Akrotiri and Dhekelia, and the Crown Dependencies are covered by this provision. For the British Overseas Territory Bermuda⁴⁵ and the Crown Dependency Isle of Man⁴⁶ the United Kingdom notified the application of NATO SOFA according to Art. XX, para. 2 NATO SOFA to the US Government. For the British Overseas Territories Gibraltar and the Sovereign Base Areas of Akrotiri and Dhekelia as well as for the Crown Dependencies of the Channel Islands⁴⁷ no such notifications have been provided.⁴⁸ However, the United Kingdom has extended the application of NATO SOFA for the forces of different NATO nations in the areas mentioned.⁴⁹ NATO forces in the said areas are subject to the application of the NATO SOFA.

4. Article 6(ii) North Atlantic Treaty

According to Art. XX, para. 1 NATO SOFA and Art 6(ii) North Atlantic Treaty NATO SOFA is applicable

on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

Page Id: 425References(p. 426) First of all it needs to be clarified what is meant by ‘North Atlantic area’. A legal or juridical definition of the term ‘North Atlantic area’ does not exist. In oceanographic terms the North Atlantic is that part of the Atlantic Ocean located between the Equator and the Arctic Circle.⁵⁰ This limitation is not suitable for the North Atlantic Treaty. It would exclude the whole area very important for NATO between Greenland and Norway north of Iceland from the application of the North Atlantic Treaty and the NATO SOFA. This was not the intention of the Parties of the North Atlantic Treaty in 1951 and it is not to date. Irrespectively, the Treaty does not refer to the ‘North Atlantic’ but to the ‘North Atlantic Area’.

To qualify the area between NATO nations north of the Arctic Circle as a region of lower security contradicts the security guarantees given by the NATO States to each other. Hence, a limitation of the North Atlantic area to the north at the Arctic Circle would contradict the North Atlantic Treaty as it contradicts the guarantees of security to the nations in this area and to the meaning and the purpose of the Treaty. The same applies to its big marginal seas such as the English Channel, the American Mediterranean Sea, the Irish Sea, the North Sea, and the Gulf of Saint Lawrence; they could be due to their broad connections accounted for the North Atlantic area. The (European part of) Mediterranean Sea, explicitly mentioned in the North Atlantic Treaty, is part of the treaty area as well.

Not explicitly mentioned are the Baltic Sea and the Black Sea. The reason may be seen against the historical background at the time of conclusion of both the North Atlantic Treaty and the NATO SOFA. At that time the Danish Baltic approaches were already covered as part of the NATO Treaty area. The allied occupational zones in West Germany were covered by the term ‘any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force’ as laid down in Art. 6(ii) of the North Atlantic Treaty. This provision became obsolete with the accession of West-Germany to NATO, when the NATO area at the Baltic Sea not only comprised Norway and Denmark, but also the West German Federal State of Schleswig-Holstein. With the German re-unification and the accession of Poland, Lithuania, Latvia, and Estonia to NATO its area extends now almost along the complete southern coast of the Baltic Sea with the exception only of the Kaliningrad Oblast and the Eastern end of the Gulf of Finland, both being part of Russia.

The situation in the Black Sea is similar. With the accession of Bulgaria and Romania to NATO the Western part of the Black Sea became part of the North Atlantic Treaty area. So together with Turkey three new NATO States share the Western and Southern coastline of the Black Sea. One has, however, to take into account that for the Black Sea the Montreux Convention Regarding the Regime of the Straits is applicable.⁵¹

An interpretation that the Baltic Sea and the Black Sea would not be included into the North Atlantic Treaty area would lead to zones with a lower level of security. That would contradict the political interest in the Baltic States, Bulgaria, and Romania. The rationale of the accession of these States to NATO (as of all the other States) was to join NATO as an alliance that provides security to its members. The preamble to the North Atlantic Treaty describes the Treaty’s purpose in such a way that the Parties

are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to (p. 427) promote stability and well-being in the North Atlantic area. They are resolved to unite their efforts for collective defence and for the preservation of peace and security.

Hence it can be concluded that all NATO Member States agree to the extension of the North Atlantic area to the Baltic Sea and the Black Sea.

5. Territories outside Europe and North America

With France and Spain there are two NATO Member States with territories outside the area described in Art. 6 of the North Atlantic Treaty. France considers that its overseas population is according to the French Constitution part of the French nation.⁵² The French attitude regarding the inclusion of its Algerian departments in the NATO Treaty area in 1949 made clear that France wanted and still wants all its territories being included in the NATO Treaty area. The same applies for the African possessions of Spain: Ceuta and Melilla are according to the Spanish constitution integral parts of the Spanish territory.⁵³ For both States their possessions outside Europe are considered integral parts of their respective countries with the same requirement for security as the European part of the countries. None of the other NATO members disagreed with this view.

Therefore it can be concluded that at least with regard to France and Spain their non-European territories are covered by the NATO Treaty. The same applies in principle for the NATO SOFA. Neither France nor Spain differentiates between the European and the non-European territories. Therefore they consider all their respective territories as metropolitan territories. As it is the sovereign right of a nation to decide what it considers as ‘metropolitan territory’, the inclusion of the said areas leads also to the application of the North Atlantic Treaty there.

III. Applicability of NATO SOFA Out of Area?

1. Naval operations

NATO ships from various nations are constantly patrolling in international waters in the North Atlantic and the Mediterranean. Navy manoeuvres are taking place there as well. Under the terms of its Art. XX NATO SOFA seems to be inapplicable. Yet, if that was the case, several provisions in Art. VIII NATO SOFA would be difficult to understand. If the SOFA was in fact only designed to cover the ‘metropolitan’ area, there would be little need to address maritime damages. As Lazareff maintains, after relating the drafting process, Art. VIII, para. 1 NATO SOFA does not only apply to incidents in territorial waters.⁵⁴

Two arguments can be put forward in favour of this view: firstly, the main reason for limiting the scope of the territorial applicability of Art. XX, para. 1, was the situation relating to colonial possessions and dependent territories. Since the High Seas are not subject to any sovereignty this problem does not arise here. Even if an incident between two NATO warships should take place in the territorial waters of a non-NATO member or of a non-metropolitan area of a NATO Member State, this would not affect the Members’ ability to set out rules for the settlements of damages occurring between each other. Secondly, if NATO SOFA were not applicable outside ‘metropolitan waters’, one would expect that there to be special arrangements, at least for standing naval forces, for example, Page Id: 427References(p. 428) addressing any foreseeable problems. However, as far as can be seen from the files, no such arrangements were made. Hence, one might think that at least Art. VIII, para. 1 NATO SOFA was regarded as applicable by the Contracting Parties to NATO vessels operating outside territorial waters. Other paragraphs within Art. VIII NATO SOFA refer to property ‘located in its territory’ (para. 2, lit. a) or damages ‘in the territory of the receiving State’ (para. 5). These paragraphs cannot therefore be extended to other than territorial waters, even where para. 5, lit. h would normally permit an application towards maritime damages.

There is some reason to extend the territorial applicability of the NATO SOFA provisions regarding damages to military property with respect to naval operations, but the high seas or territorial waters of a non-Member State are definitely not part of the metropolitan area of the NATO Members. There is also no indication in the NATO SOFA that Art. VIII NATO SOFA should in part override the territorial limitation set down in Art. XX NATO SOFA. On the contrary, from a systematic point of view it is clear that Art. XX NATO SOFA has priority. If, therefore, the maritime clause should not be rendered inefficient another approach may be tried: for the purposes of the NATO SOFA it might be maintained that ships registered within the metropolitan area form a part of that territory even when sailing the high seas. Yet, the view that at least State-owned vessels and aircraft are parts of the territory of their flag State or the State of registration has been abandoned in the legal community. If it is not possible to extend the territorial application of the NATO SOFA by the means of interpretation alone, it would be advisable for the parties concerned to amend the terms of reference of the standing naval commandos with respect to the settlement of damages. Then it would not be necessary to amend the NATO SOFA itself.

In any case, if not State property but civilian property is damaged, the relevant provisions are not SOFA ones, but those of the normal international law of the seas: if a NATO ship damaged a civilian vessel of a non-NATO nation the ‘ordinary’ international law covering State responsibility for warships would be applicable. The same would be the case if a warship of a NATO nation that is not assigned to a NATO operation were involved in an incident with a civilian ship, even if the latter sails under the flag of a NATO Member State. There is no reason why an accident should be treated differently if that warship is participating in a NATO operation. The high seas can be used for military purposes by all States, hence the risk of getting involved in an accident is basically the same for the civilian ships of NATO and non-NATO Member States, whereas on land the presence of allied forces involves a greater likelihood for damages to the civilian population of NATO countries. In the latter case, it seems to be appropriate to provide for special procedures like those under Art. VIII, para. 5 NATO SOFA. The same need does not exist with respect to international waters.

Therefore only one area remains doubtful, the question of criminal jurisdiction. In traditional international law warships were regarded as part of the territory of their nation, this view has since been abandoned. Yet, the view that the State whose flag the vessel shows has jurisdiction over incidents on board that ship survived (cf. Arts. 92, 95 of the UN Convention on the Law of the Sea—UNCLOS; see also e.g. § 4 of the German Criminal Code). If Art. VII NATO SOFA applies, there can be concurrent jurisdiction if a seaman of another nation commits an offence on board the vessel. For example, a soldier of NATO Member ‘A’ hurts a soldier of NATO Member ‘B’ on a ship of NATO Member ‘C’. ‘C’ could claim jurisdiction since the incident took place on its vessel, whereas ‘A’ can invoke jurisdiction ratione personae since the perpetrator is its national. ‘B’ might try to establish its jurisdiction on the basis that the victim is its national. Under Art. VII, para. 3(a)(ii) NATO SOFA the primary right to exercise jurisdiction would depend on whether (p. 429) or not the offence was committed ‘in the performance of official duty’. In the former case state ‘A’ would have the prerogative, in the latter ‘C’. Under general international law the situation would be different, but general rules pertaining to the immunity of foreign State officials apply (see Chapter 5). This does not, however, prevent the State of which the offender is a national from exercising jurisdiction as soon as that person comes within its reach. If no bilateral agreements exist between the States involved, the question of priority, or more specifically if the State that has apprehended the perpetrator is unwilling to surrender him or her, the matter must be solved in bilateral negotiations.

As can be seen, the application of Art. VII NATO SOFA to ships operating on the high seas would be an advantage, but absent special agreement it does not seem possible to extend the application of Art. VII NATO SOFA to such incidents. On the other hand, cases like the one described above are not that frequent. If ever such a situation should arise, it would have to be solved by bilateral negotiation (involving, maybe, an ad hoc application of the principles set out in Art. VII NATO SOFA). The proposed amendment of the terms of reference could address this problem as well.

2. Aerial operations

The same reasoning as for maritime operations could be applied to aerial operations. However, for the AWACS programme special provisions have been already agreed upon by the nations participating in the operation. Section 111 of the Multilateral Memorandum of Understanding provides that every AWACS plane will be flown under the insignia of one of the participating governments (subpara. 3). The term ‘insignia nation’ may not be mistaken for the nation of registration. Although an aircraft may bear the insignia, for example of the US, it still would be registered in Luxembourg. The aim of assigning each plane to one of the participating States is to make the settlement of damages involving the aircraft and third countries easier and Luxembourg has always insisted that it ‘does not accept any additional financial obligations’.⁵⁵ For the settlement of damages sub-section 4 stipulates that:

— claims arising from operations of an aircraft outside a NATO country are to be settled by the insignia nation, whereas
— claims originating from aircraft operations within the NATO territory will be settled according to Art. VIII NATO SOFA.

To the extent that the claim of parts thereof has been paid by a nation who contributes to the Operations and Support (O&S) budget NATO will reimburse that State from the said budget in accordance with Section IX of the Memorandum (Cost Sharing). Claims arising from incidents with assets other than aircraft will be settled in accordance with NATO SOFA (subsection 5). A footnote to the said section indicates that the Parties had agreed on reviewing the process for the settlement of claims during 1979. Apparently this review did not take place until 1982.⁵⁶ Then the US, with some support from the UK and Germany, requested a change, as they favoured the application of Art. VIII NATO SOFA alone. Hardships arising from the application of the NATO SOFA could be mitigated by a decision of the NATO Atlantic Council (NAC) in accordance with (p. 430) Art. V, para. 5(f) NATO SOFA.⁵⁷ But, as far as can be seen from the files, no changes have been made to the original agreement in that respect. As the Memorandum was not agreed between all Member States, it is doubtful whether it can make NATO SOFA applicable to claims of non-participating NATO Members. Para. 8(b) of the principles approved by the NAC on 17 February 1982 reads as follows:

Claims resulting from accidents within or outside NATO nations will be settled and paid in accordance with existing international agreements and practice and, solely for the countries participating in the Programme, the Multinational Memorandum of Understanding …⁵⁸

It does not answer the question whether NATO SOFA is included in this provision. An AWACS aircraft would have to be regarded as ‘owned by’ another ‘Contracting Party and used by its armed Services’ and the insignia State as owner of the said plane for the purposes of NATO SOFA, although—according to the Memorandum—NATO itself is the proprietor of the asset. One could argue that, since the insignia State is paying for damages caused by the aircraft outside NATO territory, it may be viewed as its property for the purposes of NATO SOFA as well. Another possibility could be the analogous application of Art. 6 of the Paris Protocol. In practice, it would be unlikely that a NATO-owned AWACS plane would be treated less favourably than a Member State’s aircraft. The legal construction, however, remains uncertain.

The opposite case, where an AWACS plane is damaged by a Member State, whether participating in the programme or not, is not addressed either. It is not clear whether the SOFA should apply or if NATO as the owner of the property would receive payment for the damages. How the third scenario, two AWACS planes colliding outside the NATO territory, should be solved is not entirely clear either. However, of the two options, analogous application of NATO SOFA or settlement through the insignia State of the aircraft responsible for accident with possible reimbursement later, the second alternative seems preferable, since it has a basis in the wording of the Memorandum.

3. Land operations

Status-of-forces agreements with Host States during peacekeeping missions do not cover the relations between the Allies. Therefore, Art. XX, para. 1 NATO SOFA once more excludes the application of Art. VIII NATO SOFA. Again, it would be advisable for the Allies formally to agree (at least) between them on the analogous application of the NATO SOFA (and PfP SOFA rules for accidents occurring during their operations out of area).

IV. Conclusion

While the territorial applicability of the UN Model SOFA does not raise any particular problems, the limitation of the territorial applicability of NATO SOFA, which had good historical and political reasons when the Agreement was drafted, appears to be more complex. Yet it does not create impediments to the solution of legal problems resulting Page Id: 430References(p. 431) from the Alliance’s enlargement and its operations. Hence, it might not be necessary to amend NATO SOFA itself. It can be resumed that as a general rule on the territories of the Parties of the North Atlantic Treaty NATO SOFA applies. The same applies for the North Atlantic region north of the Tropic of Cancer. For operations beyond this area special arrangements could suffice.

Footnotes:

¹ ‘The term Government as used in the present Agreement will be defined to mean the Government of the host country or Administration having de facto authority over the territory and/or area of operations in question.’

² North Atlantic Treaty (4 April 1949), 243 UNTS 34, with Protocols on the Accession of Greece and Turkey (22 October 1951), 350 UNTS 126), the Federal Republic of Germany (23 October 1954), 308 UNTS 243), Spain (10 December 1981), the Czech Republic, Hungary, Poland (16 December 1997), Bulgaria, Estonia, Latvia Lithuania, Romania, Slovakia and Slovenia (26 March 2003), Albania and Croatia (1 April 2009), Montenegro (5 June 2017).

³ MS-R (51) 16.

⁴ S. Lazareff, Status of Military Forces under Current International Law (Leyden: Sijthoff, 1971), 441.

⁵ Treaty on Friendship, Co-operation and Mutual Assistance (4 May 1955).

⁶ Protokoll über die Herauslösung der Truppen der Nationalen Volksarmee der Deutschen Demokratischen Republik aus den Vereinten Streitkräften der Teilnehmerstaaten des Warschauer Vertrages (24 September 1990), [Protocol on the dissolution of the troops of the National People’s Army of the German Democratic Republic from the United Armed Forces of the participating States of the Warsaw Pact (24 September 1990)].

⁷ Treaty on the Final Settlement with respect to Germany (12 September 1990), 29 ILM (1990) 1186, BGBl 1990 II 1318. Art. 5, para. 3, 1st sentence, provides that ‘following the completion of the withdrawal of the Soviet Armed Forces from the territory of the present German Democratic Republic and Berlin, units of the German armed forces assigned to military alliance structures in the same way as those in the rest of German territory may also be stationed in that part of Germany …’.

⁸ According to Art. 5, para., 3rd sentence, of the 2 + 4 Treaty ‘foreign armed forces will not be stationed in that part of Germany or deployed there’.

⁹ Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands [Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity] (21 August 1990), 30 ILM (1991) 457, BGBl II 889.

¹⁰ Annex I, section I, No. 5 of the Einigungsvertrag.

¹¹ Agreed Minute to the Treaty on the Final Settlement with respect to Germany.

¹² Annex 1 to Art. 11 of the Einigungsvertrag. See Chapter 40, Section III.

¹³ Exchange of Notes between Germany and Belgium, Canada, France, the Netherlands, the United Kingdom of Great Britain and Northern Ireland, and the United States of America (25 September 1990), BGBl II 29, as amended on 12 September 1994, BGBl II 3716.

¹⁴ Berlin, Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt, Thuringia.

¹⁵ Baden-Württemberg, Bavaria, Bremen, Hamburg, Hessia, Lower Saxony, North-Rhine-Westphalia, Rhineland-Palatinate, Saarland, Schleswig-Holstein.

¹⁶ Exchange of Notes between Germany and Denmark, Greece, Italy, Luxembourg, Norway, Portugal, Spain, and Turkey (29 April 1998), BGBl 1999 II, 506.

¹⁷ See e.g. Art. 1 of the Visiting Forces Agreement between Germany and Poland (23 August 2000), BGBl 2001 II 178; Article 2 of the Visiting Forces Agreement between the Czech Republic and Germany (31 July 2003), BGBl II 1076; Art. 1 of the Visiting Forces Agreement between Estonia and Germany (21 November 2007), BGBl 2008 II 1278.

¹⁸ See Chapter 41, Section III(6).

¹⁹ See the respective Instrument of Accession.

²⁰ Statement by Portugal at the time of signature on 19 June 1951.

²¹ Art. 5, para. 1 of the Portuguese Constitution dated 2 April 1976.

²² Constitution of the Kingdom of Spain dated 29 December 1978.

²³ Suleiman Shah is the grandfather of Osman I, founder of the Ottoman Empire. Art. 9 of the Treaty of Ankara (20 October 1921) reads as follows: ‘The tomb of Suleiman Shah, the grandfather of the Sultan Osman, founder of the Ottoman dynasty (the tomb known under the name of Turk Mezari) situated at Jaber-Kalesi shall remain with its appurtenances, the property of Turkey, who may appoint guardians for it and may hoist the Turkish flag there.’

²⁴ Recep Tayyip Erdoğan, at that time Turkish Prime Minister, stated in a televised interview on 5 August 2012: ‘The tomb of Suleiman Shah [in Syria] and the land surrounding it is our territory. We cannot ignore any unfavourable act against that monument, as it would be an attack on our territory, as well as an attack on NATO land.’ This Turkish view is not generally shared. The borderline between Turkey and Syria was established by the Treaty of Lausanne (24 July 1923) establishing peace with Turkey. Art. 3 of this Treaty refers to Art. 8 but not to Art. 9 of the Treaty of Ankara.

²⁵ Alaska Statehood Act Public Law 85-508 dated 7 July 1958.

²⁶ Public Law 86-3 dated 18 March 1959.

²⁷ Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331.

²⁸ CJ (65) 209.

²⁹ GAS/67/1 A.

³⁰ CJ (68) 137.

³¹ Hawaii Admission Act (18 March 1959).

³² According to section 8(d) of the Alaska Statehood Act all legal provisions applicable in the US enter also in Alaska into force.

³³ For example the islands of Saint Pierre and Miquelon according to Article 72-3 of the French Constitution dated 4 October 1958.

³⁴ The Northern Tropic is the circle of latitude at 23° 26′ 04″ north of the Equator (as of 21 June 2015).

³⁵ Art. 2 of the Agreement to amend and supplement the defence agreement of 6 August 2004

³⁶ Jákup Thorsteinsson: Føroyar í kalda krígnum, Tórshavn (1999).

³⁷ Treaty of Fámijn (29 March 2005).

³⁸ This view is disputed by Spain. As both Spain and the United Kingdom are Parties to the NATO Treaty, Gibraltar is covered in any case by the North Atlantic Treaty.

³⁹ CJ (74) 146.

⁴⁰ DPP/86/269 (concerning the complaint by the Spanish ambassador De Ojeda about a visit by SACEUR to Gibraltar).

⁴¹ The Visiting Forces Act (Application to Colonies) Amendment Order 1957 (24 January 1957), referred to by Lazareff, (n. 4) 442.

⁴² Independence on 22 June 1973.

⁴³ Independence on 21 September 1964.

⁴⁴ Independence on 16 August 1960.

⁴⁵ Notification by the British Embassy on 18 June 2002.

⁴⁶ Notification by the British Embassy on 30 January 1962.

⁴⁷ Bailiwicks of Jersey and Guernsey.

⁴⁸ However, the Visiting Forces Act of 30 October 1952 in its current version is applicable on the Overseas Territories and Crown Dependencies.

⁴⁹ Lazareff, (n. 4) 442.

⁵⁰ Definition by the International Hydrographic Organization.

⁵¹ Convention Regarding the Regime of the Straits (20 July 1936), 173 LNTS 214–41, limits the time of presence, size, and classes of war ships in the Black Sea.

⁵² Arts. 72 and 73, para. 1 of the Constitution of 4 October 1958.

⁵³ Art. 69 of the Constitution of 29 December 1978.

⁵⁴ Lazareff, (n. 4) 298.

⁵⁵ Principles approved by the Council on 17 February 1982, French Version attached to several documents concerning the registration of new AWACS planes, among others to DS/ADSD (82) 197 (draft English version attached to DS/ADSD (82) 31).

⁵⁶ DS/ADSD (82) 108, cf. PO/82/53.

⁵⁷ DS/ADSD (82) 108.

⁵⁸ Text of the draft English version attached to DS/ADSD (82) 31. The French version attached e.g. to DS/ADSD (82) 197 reads as follows: ‘Les demandes de dédommagement consécutives aux accidents survenus sur les territoires des nations de l’OTAN ou en dehors de celui-ci seront traitées, et donneront lieu à paiement, aux termes de la jurisprudence et des accords internationaux existants, completées pour les gouvernements participants au programme, par le Protocol d’accord multilatéral … .’

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