Part III Headquarters Agreements, 37 NATO International Military Headquarters
Andrés Muñoz-Mosquera, Mette Prassé Hartov
Edited By: Dieter Fleck
- Military assistance — Treaty provisions — Military matters — Peace keeping
The North Atlantic Treaty (NAT)1 establishes a security and defence alliance in the Euro-Atlantic area.2 The NAT does not reference the ‘organization’, but it establishes the North Atlantic Council and vests authority in the Council to ‘consider all matters concerning the implementation of this Treaty’ and to establish subsidiary bodies.3 The decision-making authority vested in the Council is not limited to standing up subsidiary bodies, but attains to all aspects relevant to the implementation of the NAT, and includes the institutionalization of the organization.4 The treaty is drafted within the framework of the Charter of the United Nations and particularly recognizing the role of the Charter, but the language (‘purpose and principles’) of the NAT is carefully chosen, as not all of the founding Member States at the time were members of the UN.5 The mandate instituted in the treaty goes beyond that of responding to an armed attack and acting in collective self-defence. In particular Arts. 2 and 4 promote interaction and development of relations, while Art. 3 directs Allies to ‘maintain and develop their individual and collective capacity’.
Responding to the developing security situation both on the Korean Peninsula and in Europe, the Council soon developed institutional elements such as the Secretariat and the International Military Headquarters. With the institutional elements came also a need to equip them with a legal position since the NAT did not include full-institutional provisions.6 Both the organization, its international staff, and NATO International References(p. 460) Military Headquarters (IMHQ) [or Allied Headquarters] form part of the institutional structure of the North Atlantic Treaty Organization, and with the status agreements adopted in 1951–1952, the Alliance gave birth to the ‘O’ of NATO, the Organization. The different elements of the organization are governed by different treaties and have distinct legal positions,7 but all form NATO’s constitutional structure.
Accordingly, when one speaks of NATO, contrary to what many think, one does not speak of a single and monolithic institution but of several separate institutions, each possessing distinct legal positions (legal status—legal personality, legal capacity, powers, privileges and immunities, as well as responsibility8) and established by the North Atlantic Council, consistent with and in response to the authority and functions vested in the Council by Art. 9 of the NAT. While this is not common, it is not unprecedented either and equally exists in other international organizations such the World Bank.9 Monaco argues that NATO is the most surprising phenomenon in the international organizations’ study field, since the Alliance has come to be one of the most complex international structures, to the point that a change to its objectives and structures create a ‘delicati problem giuridici.’10 Nothing in international institutional law instructs the internal constellation or structure of an international organization. Actually, international organizations’ uniqueness is based on their constituents creating them for specific functions and purposes. They form a community of interest around a question, where the individual action of States is suboptimal, and the configuration of international organizations is tailored to their mission and purpose; the establishment and evolution of international organizations is based on the principle of functional necessity.11
As advanced above, NATO’s constitutional structure is made of several treaties. The NATO Status of Forces Agreement (NATO SOFA) regulates the status of Visiting Forces, the Paris Protocol defines the status enjoyed by ‘International Military Headquarters set up pursuant to the North Atlantic Treaty’, and the Ottawa Agreement12 provides status to the organization, its civilian staff, and the national representatives to NATO (missions established at NATO Headquarters).13 The drafting of the Protocol was initiated while the References(p. 461) NATO SOFA was in its final stage, but it was negotiated in parallel with the drafting of the Ottawa Agreement. Furthermore, the first host agreement (or accord de siege) between France and SHAPE was also being developed at this time. As the subject of status for military headquarters was seemingly closer to the NATO SOFA than to the Ottawa Agreement, the Paris Protocol was formed as a protocol to the NATO SOFA. The Paris Protocol was signed by the then 14 Allies on 28 August 1952; it was ratified by 13 of the initial signatories and one Signatory, Iceland, ratified the Paris Protocol in 1954, but only ratified the NATO SOFA in 2007. The accession protocol for Greece and Turkey to join NATO was opened for signature in the fall of 1951, and while neither of the acceding States appear to have taken part in the drafting of the Paris Protocol they were part of the general consultations in the NAC.14 In 1966, France denounced its participation in the Paris Protocol as part of the decision to withdraw from the integrated military structure, although not from the Alliance,15 another example of NATO’s complex institutional development. In 2009, France decided to return to the integrated military structure, and since 2010, France has held the post of one of the Strategic Commanders (Supreme Allied Commander Transformation).16 In 2016, France again became a Party to the Paris Protocol, effective 11 September 2016.
At the time the North Atlantic Council held its fifth session in New York on 15–18 September 1950, NATO States were convinced that the international security environment ‘required the creation of an integrated military force under a Supreme Commander supported by an international staff and subject to the direction of the subsidiary body of the Council called the Standing Group’.17 While the first Supreme Allied Commander Europe, General Eisenhower, converted the former allied planning groups into dedicated International Military Headquarters at different tiers, the work on drafting a full suite of agreements to define the legal position of the emerging structure of NATO took off.18 Early in the negotiations of the NATO SOFA, there was debate whether a new document, beyond the then draft SOFA, would have to be developed to govern the presence, manning, operations, privileges and immunities, and legal personality of International Military Headquarters. In late April 1951, the Chairman of the Working Group on the drafting of the NATO SOFA, set up by the NATO Council Deputies only two and a half months earlier, raised the issue of whether the agreement they were actually drafting should apply to the three kinds of NATO ‘bodies’ already established: Supreme Headquarters Allied Powers Europe,19 the Standing (p. 462) Group20 and, thirdly, military personnel attached to NATO civil bodies. The French Representative pointed out that his government was at that very time in negotiations with SHAPE on this fundamental issue, and he expected to be in a position to report to the Working Group. The Chairman in return stated that, in his view, the matter of SHAPE could be settled by a protocol to the NATO SOFA.21 That view was to become the solution for NATO International Military Headquarters.
While SHAPE was not the only NATO military headquarters of concern to the Working Group in drafting the Protocol, it was the most visible during the negotiation, since it begun preliminary operations in December 1950 and already was the object of ongoing negotiations with France over its presence in that country.22 Secondly, General Eisenhower was the Council’s representative prior to the appointment of a Secretary General.23 In fact, the initial version of what became the Paris Protocol referred exclusively to SHAPE.24 The Portuguese Representative in the Working Group needed to remind his colleagues that his country, for defence purposes, did not fall within the geographic area of responsibility of Allied Command Europe (ACE) but rather that of the Headquarters Supreme Allied Commander Atlantic (SACLANT).25 Furthermore, with regard to the debate over the applicability of the NATO SOFA to SHAPE and SACLANT, he pointed out that each was an ‘agency of the North Atlantic Treaty’, which seriously called into question whether the NATO SOFA would appropriately apply.26 In February 1952, it was decided to abolish the Council Deputies and establish a permanent Council,27 with Foreign and Defence Ministers represented by permanent political and military national delegations at one location. The International Secretariat was formed, and NATO’s ‘headquarters’, the ‘Organization’, moved from London to Paris to be near SHAPE, which was then situated just outside Paris. This is an organizational structure that continues today and what effectively led the same 12 nations, who were negotiating what was to become the NATO SOFA, to take on the task of drafting a specific protocol dealing with the status of International Military Headquarters set up or to be set up pursuant to the North Atlantic Treaty, along with drafting an agreement on the status of the North Atlantic Treaty Organization, the national representatives and the organization’s international staff.
Early in the drafting it had been decided to exclude military headquarters from the application of the Ottawa Agreement, (as long as the Council would not decide the contrary),28 and establish their legal position by a distinct legal framework. Not all NATO (p. 463) International Military Headquarters fall automatically under the Paris Protocol29 as this require an active decision on the part of the NAC consistent with Arts. 1 and 14 of the Protocol, while ‘subsidiary bodies’ fall under the Ottawa Agreement. Both documents have language that permits a certain degree of flexibility regarding their application.30 However, the truth of the matter is that while the possibility exists both under Art. 2 of the Ottawa Agreement and Art. 14 of the Protocol, a military headquarters has not been assigned, fully or partially, status directly under the Ottawa Agreement. On the other hand, NATO entities have changed status from the Protocol to become Ottawa organizations in the course of reorganizations, just as some NATO civilian agencies by their Charters may rely on status under both agreements. Furthermore, the status of the International Military Staff is covered by the Paris Protocol and not by the Ottawa Agreement.31
In 1994, with the introduction of the Partnership for Peace (PfP) Framework Document, it was decided to invite States participating in this partnership to set up national missions to NATO. To define the status of those missions, an agreement, the Brussels Agreement, was concluded between the NATO Member States.32 The Brussels Agreement grants the same status to missions representing PfP States as granted to missions established by NATO States, i.e. diplomatic immunity. PfP States do not sign the agreement, but upon accession to NATO, new NATO members have to accede to the Agreement. Similarly, a Further Additional Protocol33 to the PfP SOFA was adopted in 1997. Just as the PfP SOFA, the Further Additional Protocol is a transition document that enables the Paris Protocol to be applied in the territory of participating PfP States and provide status to personnel of such States when attached to an Allied Headquarters.
1. The Paris Protocol and the law of international organizations
The privileges and immunities of international organizations, their assets, seat, international staff, and member representatives are normally recorded in the constituent treaty by which the organization is established. Other features may be part of consuetudinary international law. The facilities accorded to international organizations are operative (in nature as well as objective), and cover generally what the participating States consider necessary to enable the organization to function effectively and to carry out its mission. Functional immunities and privileges are recognized as a prerequisite for the References(p. 464) effective operation of international organizations in international law. However, to which extent they constitute customary34 international law remains a subject of debate.35 The most prominent treaty examples are the Convention on Privileges and Immunities of the United Nations36 and the subsequent Convention on the Privileges and Immunities of the Specialized Agencies.37 Although it may be argued that the United Nations Conventions provide a post World War II standard,38 nations have continued to explicitly address privileges and immunities in founding documents and in headquarters or seat agreements. The United Nations conducted a study in 1967 (and in 1985) on the topic, as it relates to the United Nations and the specialized agencies,39 in an attempt to record customary international law in respect of the status of member representatives to international organizations. Following this study, the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character was introduced in 1975. The Convention has not been signed by a sufficient number of States to enter into force, and several States questioned whether the Convention in fact reflected customary international law.40 While certain privileges and immunities have become commonly recognized as customary norms,41 the overarching requirement (and expectation on nations) to provide functional protection to international organizations is, however, recognized in customary international law that ‘members—and a fortiori the headquarters State—may not at one and the same time establish an organization and fail to provide it with those immunities that ensure its role as distinct from that of the Receiving State (and other member States)’.42
References(p. 465) Consistent with the notion of function, international organizations across the spectrum enjoy different levels of immunity from legal process, measures of execution, financial controls, exemptions from taxes and duties, as well as inviolability of documents and archives.43 The extent of these customary norms has been examined by the International Law Commission (ILC). In his Third Report, the Special Rapporteur, Mr. Leonardo Díaz-González, provided an outline of the scope of the privileges and immunities to be granted to both the international organization and its officials.44 While the ILC never completed its draft Articles on this topic, the outline is seen as an attest to the scope of functional necessity45 and the associated requirements necessary to effectively enable international organizations and their international staff to perform their mission. This principle is different from that of diplomatic immunity: the principle of functional necessity states that an international organization shall be granted privileges and immunities, which are necessary for ‘the effective exercise of their functions’.46 Or, as summarized in the Third Report of the ILC Special Rapporteur, the granting of these privileges and immunities is ‘founded on the principle underlying the legal status of those organizations, i.e. the guarantee afforded by the host country that they can, with complete freedom and independence, exercise on its territory their constitutional and statutory activities or any other activity connected with the functions assigned to them’.47 Although the ILC reports did not materialize in a treaty, the general principle is widely recognized in international law, and it is affirmed in the UN Charter (Art. 105, paras. 1 and 2).48
Regardless of the existence of the well-established general principles, States have continued to embed privileges and immunities in the treaties by which international organizations are established and/or in a subsequent headquarters or status agreement.49 This is perhaps to acknowledge that short of specific agreement, the recognition of privileges and immunities may be questioned in specific cases unless mitigated in national legislation. Since the privileges and immunities are functional, the status should be aligned with the specific foundational or constituent treaty(ies) of the international organization. Headquarters or basing agreements reflect the capacity (mandate, domestic and international legal personality) and captures the corresponding status to be granted; and privileges and immunities are assigned to conformingly enable the organization to carry out its tasks and functions. So, while it may be disputed if all privileges and immunities per se are customary international law, it does illustrate a consistent trend in public international law; it speaks to 60 years of well-accepted State practice to describe the functions of international organizations in their constituent treaties and identify the corresponding privileges and immunities from the outset, rather than rely on more general principles.
References(p. 466) 2. The Paris Protocol and the Ottawa Agreement
Looking closer at the nexus between the Ottawa Agreement and the Paris Protocol, one finds both distinct differences and similarities. The differences may, in part, be due to the Protocol being built on the NATO SOFA, which again is a reflection of the status of sovereigns and thus of the immunities enjoyed by sovereign States in their mutual relations. This was identified in a question made by the Canadian Representative in the drafting of the Protocol: ‘it can be understood that a sending State would have sovereign immunities but not, normally, a Supreme Headquarters. How is this to be reconciled?’50 No answer to the question is found in the Travaux Préparatoires, but it is reasonable to suggest that the Paris Protocol was being drafted at a point in time when the concept of status enjoyed by international organizations was developing. The UN Charter and the General Convention provided codification of ‘the law’ at the time, and while the Ottawa Agreement draws clear lines back to the General Convention, the Paris Protocol seems to be of a more unique character (or, if one is less kind to the Paris Protocol, a cross-breed between the law of State sovereignty and the evolving concept of the status of international organizations), although the actual title, ‘On the Status of International Military Headquarters Set up Pursuant to the North Atlantic Treaty’, by making direct mention to the NAT, leaves no doubt on the purpose of the Protocol, and that the Protocol cannot be interpreted or applied except consistent with and within the general framework of NATO, its founding treaty and status agreements, and thus the broader international structure within which NATO is established and operates.51
The Protocol defines institutional privileges and immunities and, while not identical to, it does remain consistent with those granted under the Ottawa Agreement, either through specific Articles (juridical personality, immunity from execution, inviolability of archives and documents, fiscal privileges), or by incorporating others by reference to the NATO SOFA. Some of the privileges and immunities, particularly for Headquarters staff members, rely on the NATO SOFA being applied mainly through Art. 3, para. 2, of the Protocol. While the idea to introduce the same language on immunities in the Protocol as had been adopted in the Ottawa Agreement was briefly discussed, the discussion appears to relate predominantly to taxes and to the status of Flag and General Officers. The latter was continuously tabled by the US but was deferred to be addressed in subsequent Supplementary Agreements. At some point, it was suggested to refer all NATO International Civilians to be covered by the Ottawa Agreement to ensure equal treatment across NATO particularly for taxation purposes. This idea was not carried forward, and the exemption from income tax on salaries and emoluments paid to NATO International Civilians employed by Allied Headquarters was incorporated into the Protocol along with institutional immunities,52 while the status granted to international staff members of the International Staff in the Ottawa Agreement (Part IV) was not replicated in the Paris Protocol, which instead matches up with the terms introduced in the NATO SOFA. Likewise, national military missions to Allied Headquarters, such as the National Military Representative to SHAPE, the National Liaison Representatives to HQ SACT, and National Support Elements, assigned to various Headquarters across NATO, function in the Receiving State primarily under the NATO SOFA (and additional status References(p. 467) identified in agreements supplementing either the NATO SOFA or the Protocol), whereas the Ottawa Agreement in Part III defines the status of representatives of Member States.53
One may be tempted to consider international military headquarters as sui generis, but in the light of more than 60 years of practice, it seems more appropriate to confirm that Allied Headquarters are international organizations54 with distinct functions and with staff members mainly seconded (and employed) by the Member States.55 However, just like other international organizations, Paris Protocol entities enjoy those immunities and privileges that are necessary for their effective functioning. The Paris Protocol, when applied in conjunction with international law and with the [NATO] ‘rules of the organization’ (e.g. the regulations applicable to NATO International Civilians) and implemented in NATO Member States through Supplementary Agreements, provides an effective and functional footing for Allied Headquarters.
3. The Paris Protocol and Receiving State Law
An Allied Headquarters is under the same obligation as a force, its civilian components, the members thereof and their dependents to respect the laws of the Receiving State. The NATO SOFA, Art. II, applies by reference in the Paris Protocol, Art. 3, to Allied Headquarters, but this obligation would have existed also without the specific reference, as it is a general standard in international law. International organizations do not exist in a legal vacuum separate from their Receiving State or their Member States. So, while an international organization enjoys immunity from jurisdiction in the Receiving State, this does not equal immunity from Receiving State laws.56 Typically, the host Agreement provides specific regulations and thus establishes the ‘non-application of domestic legislation [which] push aside national mechanisms for supervising and enforcing the law, with as its main rationale securing the independent position of the organization’.57 The application of Receiving States’ laws and regulations has to conform to that State’s international obligations under the pertinent treaty (or treaties)58 and vis-à-vis the international organization and therefore be consistent with the principle of functional necessity. This is what makes the Receiving State to take the necessary measures to permit a headquarters present on its territory to achieve the goals in accordance with applicable conventional and accepted customary rules.59
References(p. 468) (b) Receiving State Law, EU law, and the Paris Protocol
Particularly one other body of law, both in its national and international context, may be seen by some as restraining the privileges and immunities of international organizations located within its area of application: EU legislation.
NATO and EU have a long-standing partnership,60 which was formalized in 2001 and the two organizations have since worked through the format of European Security and Defence Policy (2002), the Berlin-Plus arrangements (2003), and the strategic partnership adopted at the 2010 Lisbon Summit. Pursuant to the Berlin-Plus arrangements, an EU Staff Group was established and attached to SHAPE with the purpose of enhancing transparency and provide coordination at the strategic, military level in preparation of EU operations that may rely on NATO common assets.61
At the same time, EU law, when incorporated into the national legal order of Receiving States, regulates a multitude of the areas in which the NATO SOFA and equally the Paris Protocol direct the status of an Allied Headquarters, such as visa and immigration requirements,62 recognition of drivers’ licence, access to banking facilities, and tax and customs exemptions. With 22 Member States in common, several of NATO military and civilian subsidiary bodies are located in EU countries. While EU law, along with other international and internal obligations, remain a matter entirely for the signatory NATO Member State to review regarding its ex ante NATO international obligations,63 this does not affect the competence of EU Member States to conclude host or seat agreements, and the implementation and practice of privileges and immunities64 as well as status provided in host agreements65 is applied equally in the EU and its institutions and agencies.
References(p. 469) In the more general perspective, the TEU,66 Art. 3, para. 5, states that ‘[i]n its relations with the wider world, the Union shall uphold and promote […] the strict observance and the development of international law’. The TEU also promotes effective multilateralism in Art. 21, para. 1, by directing that ‘[t]he Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations […]’ and that it ‘shall promote multilateral solutions to common problems’.67 The importance of EU Member States’ participation in international organizations in the area of foreign policy is explicitly recognized in Declaration 14 attached to the Treaty of Lisbon,68 with its statement that ‘the provisions covering the Common Foreign and Security Policy […] will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its […] participation in international organisations’. The position summarized here is also consistent with Art. 42 of the TEU, which codifies the obligation of both the EU and its Member States to ensure that policy concluded under the CFSP does not interfere with the NATO obligations of EU Member States. And, it is consistent with case law of the Court of Justice of the EU (CJEU).69 In reviewing specific EU rules, the authors’ conclusion is that while EU nations may have to follow community procedures to achieve the necessary status, they are not considered to be limited in their efforts to comply with the obligations stemming from NATO membership (and thus for many of the EU Member States from complying with international obligations undertaken prior to assuming EU membership). This is considered to be very different from suggesting that EU law prevents certain privileges and immunities. Rather, EU directives confirm and recognize the full range of NATO functional privileges and immunities, and in some cases directly reference NATO forces (understood as forces from a NATO Member State in another NATO Member State and enjoying status under the NATO SOFA), NATO status agreements and most specifically the NATO SOFA70 and it respects and enables exemptions to be made to accommodate privileges and immunities of international organizations. It is generally acknowledged that exemptions from customs duties and Value Added Tax are granted by reimbursement rather than a priori waiver (which would be the preferable model) since this is the procedure instructed on the EU Member States under the relevant EU customs and Value Added Tax Directives. It is also accepted that exemptions from visa and immigration for civilian staff members and dependents have to be achieved through the issuance of a specific visa for the Receiving State to be compliant with Council Regulations ‘Listing the third countries whose References(p. 470) nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.’71
Recent case law in Belgium confirms the above. In June and July of 2017, the tribunal de première instance francophone de Bruxelles, Section civile, issued two ordonnances for the implementation of two judgments from the Dutch District Court of Maastricht72 and the Dutch Court of Appeal of Hertogenbosch. These two judgments established the lifting of the attachment of a bank account in Belgium dedicated for the closure of the UN-mandate ISAF operation in Afghanistan, which terminated in December 2014. In the two judgments, the Dutch courts recognized SHAPE’s conventional immunity from execution in accordance with Art. 11, para. 2, of the Paris Protocol. The two ordonnances issued by the Brussels tribunal stated:
Attendu que le S.H.A.P.E. se réfère à la Convention de 1925 [between Belgium and the Netherlands on territorial judicial competence on bankruptcy, execution authority for judicial decisions, arbitration awards and deeds] pour le motif que les dispositions plus récentes de droit européen ne lui sont pas applicables.
This decision identified the non-applicability of the Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. There were two reasons not to apply that Regulation, the first is what the Brussels tribunal stated, i.e. the EU law is not applicable to SHAPE. Secondly and as recognized by the Dutch tribunals, the funds for the closure of a UN-mandated mission are intended to be used in accordance with their purpose and, ‘[c]onsequently, there are no funds for commercial purposes, but for financing the mission’.73 The Paris Protocol and its supplementary agreements are separate and independent treaties and, while EU law is part of the Receiving State’s national legal corpus, it remains the responsibility of the Receiving State to ensure that it does not interfere or render the privileges and immunities granted by the NATO governing treaties futile.
1. NATO International Military Headquarters—When does the Paris Protocol apply? Preamble, Art. 1, and Art. 14
The Paris Protocol defines the status of Allied Headquarters and their personnel ‘within the North Atlantic Treaty Area’ and uses the expression ‘Allied Headquarters’ as the collective term, and so does this chapter. A preamble first appeared in the second draft of References(p. 471) the Protocol,74 and it remained virtually unchanged thereafter. The preamble established the purpose of the Protocol as well as the geographical and functional area of application and while it seems straightforward, it deserves some reflection. Just as in the preamble of the NATO SOFA, the preamble of the Paris Protocol acknowledges the requirement to obtain the consent of the State hosting an international military presence (‘by separate arrangement’). However, the consent (or consensus) to be reached to stand up a headquarters under the Paris Protocol goes beyond that of a decision of the Receiving and Sending States. The Paris Protocol only explicitly addresses the procedure of how this decision is adopted in regards to Allied Headquarters others than Supreme Headquarters and their immediate subordinate headquarters, both defined in Art. 1, paras. b and c. Perhaps this was because the existence of the Supreme Headquarters and their subordinate entities preceded the Paris Protocol. Or, perhaps because it was evident to the drafters that the decision to establish, reorganize, and stand down such Headquarters is vested in the North Atlantic Council, consistent with Art. 9 of the NAT and with the title and purpose of the Protocol to provide status to ‘International Military Headquarters set up pursuant to the North Atlantic Treaty’.
The initial NATO command structure was not activated by signature of the North Atlantic Council itself, but by the first NATO Supreme Allied Commander Europe, General Eisenhower, acting commensurate with his delegated powers and authority. In General Order number 1, dated 2 April 1951,75 General Eisenhower directed the activation of Allied Command Europe (ACE), of Supreme Headquarters Allied Powers Europe (SHAPE), and assumed command over both as Supreme Allied Commander Europe (SACEUR). One year later, SACLANT—Supreme Allied Command Atlantic in Norfolk, Virginia, USA was activated. Both SHAPE and SACLANT are named in the Paris Protocol (Art. 1, b, definition of Supreme Headquarters) and both provided review and comments to the Working Group drafting the Protocol. The headquarters already established or designated to the new integrated military structure at the time of the drafting were listed in a report from the Chairman of the Working Group.76 Based on the report, the North Atlantic Council on 20 August 1952 issued the decision to apply the Paris Protocol to the two Supreme Headquarters and, by virtue of Art. 1, para. c, any Allied Headquarters immediately subordinated to them. The main purpose of the decision, however, appears to be the activation of five second-tier headquarters in Europe under Art. 14, all part of the Allied Command Europe and all internationally staffed, but not immediately subordinated to SHAPE.77 The interesting part of this decision is that it was adopted eight days prior to the Paris Protocol being signed on 28 August 1952, and two years prior to the Protocol entering into force.78 Today the process of activation and reorganization of Allied Headquarters follows procedures and criteria adopted by the North Atlantic Council in 1969.79
In accordance with Art. 2, the Paris Protocol is not applicable in the territory of a NATO Member State not party to the Paris Protocol (‘… in the territory of a Party to the present Protocol … ’). Yet, all NATO Member States (through the Council) are parties References(p. 472) to the decision to establish such headquarters and (or) grant them status under the Paris Protocol consistent with the procedure defined in Art. 14. In addition, by virtue of Art. 3, para. 1, military and civilian personnel from any party to the North Atlantic Treaty, who are attached to or employed by an Allied Headquarters, enjoy status under the Paris Protocol. As such, Art. 3 closes a gap for and ensures that all staff members are treated equally in the Receiving State, regardless if their Sending State is a party to the Paris Protocol, and this has real importance since not all NATO Member States are, or have been at all times, parties to the Paris Protocol.80 Secondly, the general geographical application is subject to the same limitation as applies to the NATO SOFA in its Art. XX (metropolitan territory).81
In summary, there are three ways to acquire status under the Paris Protocol and all require decisive action by the NAC; a Headquarters can be activated as a Supreme Headquarters and automatically enjoy status consistent with the definition in Art. 1, para. b.82 Secondly, an Allied Headquarters is granted status if stood up as an immediate subordinate to a Supreme Headquarters. Finally, Art. 14 allows the Council to extend some or all the provisions of the Protocol to ‘any international military Headquarters or organization […] which is established pursuant to the North Atlantic Treaty’. Interestingly, ‘organization’ is not defined or used in the Protocol except in Art. 14, but at the time of drafting the Protocol there were indeed several NATO military ‘entities’ (for lack of a better word) other than headquarters, and it was questionable what documents should apply to them. A good example was the NATO Defense College. It was ultimately decided to place the College under the Ottawa Agreement rather than the Paris Protocol and the NATO Defense College was left out of the Council’s decision in 1952 regarding the application of the Paris Protocol. Were it not for the provision in Art. 14, the Protocol would only apply to ‘Allied Headquarters’, as defined in Art. 1, para. c. In current practice, Art. 14 is used (as was the case already in 1952) to apply the Protocol to entities within the NATO command structure and thus subordinated to either SHAPE or HQ SACT. It is also used to grant international status to such international military headquarters and organizations established by NATO Member States pursuant to the North Atlantic Treaty but outside the command structure. These headquarters and organizations are sometimes referred to as ‘MOU-organizations’83 since they mostly are established by the participating References(p. 473) NATO States through a Memorandum of Understanding and then is granted status by the Council in response to a request either from one of the Supreme Headquarters or from the Member State hosting the organization. These entities are international in nature and established as headquarters or organizations by NATO Member States, in accordance with the general objective found in Art. 3 to pursue joint military capacities within and in support of the Alliance. They are created separately from and prior to the decision to apply the Protocol to them for the purpose of status. They do not participate in and cannot be delegated Supreme Headquarters legal personality and their actions and activities do not confer liabilities and responsibilities on the Supreme Headquarters. However, being granted Paris Protocol status matters to these entities. While it does not grant access to NATO international funds or participation in Supreme Headquarters legal personality, the status does provide a treaty framework, well tested and already implemented in NATO Member States and equally often supplemented by agreements providing detailed seat arrangements. By being granted Paris Protocol status, the organizations tap into existing arrangements, to the benefit of the organization, its staff, and thereby eventually the participating NATO Member States as they work together pursuant to the NAT.
2. The Paris Protocol and the NATO SOFA (Paris Protocol Arts. 2, 3 (para. 2), and 4, 15, and 16, (para. 2))
The Paris Protocol, Art. 2, incorporates by general reference and subject to the subsequent provisions, the NATO SOFA to be applied to and by an ‘Allied Headquarters’, its military and civilian personnel and their dependents. The Article provides a distinction in terms of the geographical application as well as the application to staff members, which again is consistent with the Preamble (‘define the status’ of Allied Headquarters and ‘define the status … of the personnel thereof …’). In this regard, the Paris Protocol differs from the application of the NATO SOFA in one distinct area since the Protocol provides status to individuals in the connection with their headquarters official duties, while the NATO SOFA applies as a matter of default whenever Allies conduct military activities together or on each other’s territory. This should not be understood as the Paris Protocol interfering or conflicting with the broader application of the NATO SOFA. Nor does it change the status provided under the NATO SOFA. Whether a service member enjoys status under the NATO SOFA or under the Paris Protocol will depend on the attachment and the character of the official duties (national duties or Allied Headquarters duties). The Paris Protocol applies further to the staff of an Allied Headquarters when in the territory of any party to the Paris Protocol. This is an important notion as it ensures that staff members enjoy status also when performing their official duties outside the Allied Headquarters. A question that may arise in this context is how this statement is affected by the limiting definition of a ‘civilian component’ in Art. 3, para. 1.b. There is no easy answer to be provided to this question, except that if a civilian staff member of one Allied Headquarters is attached temporarily to an Allied Headquarters located in a different NATO member State, that civilian should be regarded as ‘attached’ for the purpose of status as it may otherwise impact for example the recognition of a driver’s licence held by that staff member.
(a) An Allied Headquarters and the notion of ‘Sending State’ (Art. 3, para. 2)
The NATO SOFA operates with the terms ‘Sending State’ and ‘force’. Arguably, the force is an extension of the Sending State and not a separate agent. But, since the term ‘Sending References(p. 474) State’ is defined in the SOFA as the ‘Contracting Party to which the force belongs’ and while the term ‘force’ appears to be defined by its members rather than its authority as a State agent, the Protocol Art. 3, para. 2, identifies when an Allied Headquarters is considered to be a ‘force’ for the purposes of applying the NATO SOFA, while Art. 4 defines when an Allied Headquarters is to be considered to be a Sending State. While SHAPE early in the drafting identified the need to recognize SHAPE as a Sending State in defined areas,84 the addition of para. 2 to Art. 3 was done late in the drafting of the Protocol and without much discussion, or at least so it appears when the preparatory work is reviewed.85 The application of the respective SOFA provisions is discussed elsewhere in this chapter. As for the application of Art. V, para. 2, it is not immediately evident why an Allied Headquarters should apply a separate nationality mark to its vehicles, other than the nationality mark of the country of registration, or, if the vehicles are registered by the Allied Headquarters using distinctive plate, the mark of that Headquarters.
(b) Art. 4 and applying the NATO SOFA to Allied Headquarters
Whereas Art. 3, para. 2, designates an Allied Headquarters as a force for the purposes listed in the paragraph, Art. 4 directs that the rights and obligations given to or imposed on a Sending State in respect of its force, civilian component, and their dependents, is to be attached to or vested in the appropriate Supreme Headquarters in respect of an Allied Headquarters and its personnel, with the exceptions listed in Art. 4. Thereby the Paris Protocol recognizes that certain matters remain within the national domain of Sending States, who also provide the majority of the staffs by attaching military staff members to serve in Allied Headquarters. Nothing implies that the drafters considered a Supreme Headquarters to be granted status similar to that of a sovereign State, and this is consistent with international case-law.86 Instead, the Paris Protocol upholds a clear balance between the international organization and the States sponsoring its personnel, when it in Art. 4 describes the authority retained by the Sending States and the power vested in an Allied Headquarters.
In reviewing the drafting history of Art. 4, the development of the Article seems to be founded in technical discussions and considerations rather in negotiations over authority, and while this Article is one of the most complicated Articles to read and apply, it appeared to be straightforward to draft. Interestingly, the distinct position of a Supreme Headquarters is not carried through in the subparagraphs and the subparagraphs thereby appear to distribute authority from the Supreme Headquarters and further to Allied Headquarters.
Most of the provisions are discussed elsewhere in this chapter, but here is an abstract of the division of authority as it pertains to the SOFA provisions:
Subpara. a: Criminal and disciplinary authority over personnel as defined in the SOFA, Art. VII, shall remain with the State to whose military law that person is subject. The References(p. 475) paragraph is linked specifically to the SOFA, Art. VII, and as such does not prevent an Allied Headquarters from exercising disciplinary authority over personnel in its employ and consistent with the terms of employment.
Subpara. b: Both a Sending State and an Allied Headquarters are required to meet the obligations of a Sending State under the NATO SOFA Art. II (respect for Receiving State law); Art. III, para. 4 (obligation to report to the Receiving State if a member leaves the employ of the Sending State or is absent from the Allied Headquarters (or service otherwise) for more than 21 days); Art. VII, paras. 5.a and 6.a (provide mutual assistance in arresting and handing over for exercise of jurisdiction; mutual assistance to carry out investigations and collection and production of evidence); Art. VIII, paras. 9 and 10 (limitation on claiming immunity for members involved in claims procedures before Receiving State courts; cooperation on producing evidence and support the settlement of claims); and Art. XIII (mutual assistance to prevent customs and fiscal offences).
Subpara. c: The State to whom the members (and their dependents) belong remains the Sending State for the purposes of the NATO SOFA, Art. III, paras. 2.a and 5 (use of national Sending State ID-cards together with an authorized travel order to be exempt from passport, visa and immigration regulations; comply with a decision of the Receiving State to remove or extradite a staff member from the Receiving State to the Sending State); and Art. XIV (foreign exchange regulations).
Subpara. d: The obligations imposed on the Sending State under Art. VIII, paras. 6 and 7 (non-scope claims; unauthorized use of service vehicles causing third-party claims) shall attach to the Sending State to whose armed forces the person belongs or, if a member of the civilian component, the Sending State in whose employ the person is, and if there is no such State, the Allied Headquarters of which the person is a member.
(c) Settlement of disputes and differences—Paris Protocol, Art. 15
Art. 15 of the Protocol duplicates the dispute settlement procedure adopted in the NATO SOFA, Art. XVI. In addition to disputes between the parties to the Protocol on its interpretation or application, it includes disputes between an Allied Headquarters and any such party, ‘except where express provision is made to the contrary’ in the NATO SOFA or the Protocol. Art. VIII, para. 8, submits disputes over determining if an act was done in the performance of official duty or not and if the use of an official vehicles was authorized to arbitration, applying Art. VIII, para. 2.b, to appoint a (Receiving State) arbitrator. No separate example of ‘express provision to the contrary’ is found in the Protocol, and the authors are not aware of arbitration being employed by Allied headquarters for the purposes of settling claims under Art. VIII of the NATO SOFA or Art. 6 of the Protocol.
Looking at Art. XVI of the NATO SOFA, this provision is based on the principles that disputes are settled without recourse to outside jurisdiction (except for the arbitration envisaged in Art. VIII), and unresolved questions are referred to the North Atlantic Council. The approach is similar to that found in other SOFAs at the time,87 prescribing that differences are to be settled by negotiation and between the dissenting Parties. Only if the Parties to the Protocol are unsuccessful in reaching an agreement will the matter be brought before the North Atlantic Council, which, by Art. XVI in the SOFA and Art. 15 in the Protocol, holds the authority to settle or defer the matter for outside resolution.
References(p. 476) Art. 15 was adopted by the drafters with the comment that the Article proscribes the parties from referring matters under the SOFA to the International Court of Justice, unless ‘all parties agreed to do so’.88 The initial draft was revised to recognize both the general competence of the International Court of Justice and the authority of the North Atlantic Council to direct if a treaty dispute should be referred to the Court: ‘… it would then be in the competence of the Council when a dispute reached them to refer it to the International Court of Justice if they were unable to reach agreement and if they thought this a wise thing to do’.89
Art. XVI of the SOFA has not been evoked,90 nor has Art. 15 of the Protocol. In the context of the NATO SOFA, Lazareff addressed the sentiment that treaty disputes are potentially removed from the International Court of Justice’s jurisdiction, despite the reference to the Charter of the United Nations in the North Atlantic Treaty.91 However, this is coherent with the practice established under the Statute of the International Court of Justice, and Lazareff acknowledges that the Contracting Parties (in accordance with the Statute of Court) may reach a separate agreement on how to resolve treaty disputes. The comments recorded from the drafting of Art. XVI support this approach and conclude that if the North Atlantic Council should so decide, a dispute could be presented to the Court. While this is a sound and logical conclusion regarding Art. XVI, Art. 16 of the Protocol presents a different question: Neither an Allied Headquarters (nor the North Atlantic Council) can appear before the Court. The Allied Headquarters are not parties to the Protocol, and only States can appear before the Court;92 it is therefore assumed that any unresolved dispute between a Receiving (or Sending) State and an Allied Headquarters would be deferred to the North Atlantic Council. This premise is repeated in both Supplementary Agreements. As a matter of general practice other arrangements such as the standing Host Nation Support Arrangements, also establish that disputes are to be resolved at the lowest level possible and not be referred to any national or international tribunal or third party for settlement;93 however, the more recent Supplementary Agreements direct that disputes regarding that Agreement are to be resolved by the Supreme Headquarters, and not with the Allied Headquarters.94
(d) Revision, accession, entry into force, and scope of application—Paris Protocol, Art. 16, para. 1
Art. 16 of the Paris Protocol extends the application of the NATO SOFA, Art. XV (reservation to application in case of hostilities); Art. XVII (revision); Art. XVIII (ratification, References(p. 477) accession, and entry into force); Art. XIX (denunciation), and Art. XX (geographical application), see Chapters 34, 32, 33, and 31. As these provisions are integral parts of the Protocol, the Protocol may be reviewed, suspended, ratified, acceded to, denounced, or extended in accordance with those provisions independently from the NATO SOFA. Art. 16, para. 1, is found in the initial drafts of the Protocol, and it appears only to have been discussed on one occasion, when a reference to Art. XV was added to the list of applicable SOFA provisions.95 It is to be noted that Art. 16 is replicated in Art. 25 of the Ottawa Agreement.
(i) NATO SOFA Art. XV—Application in the event of hostilities
In the event of ‘hostilities to which the North Atlantic Treaty applies’ the NATO SOFA (and thus the Protocol) will remain in force, but for the application of the claims waiver in Art. VIII, para. 2, and the settlement of third-party claims (para. 5) to war damage. Such claims are traditionally addressed once the hostilities have seized. Moreover, the application of the SOFA (and the Protocol) shall be affirmed by review to identify if modifications particularly to Art. III (waiver of passport, visa, and immigration control measures for military personnel) and Art. VII (jurisdiction) may require to be modified. Para. 2 further allows each of the Parties, in the event of such hostilities, to suspend the application of any of the provisions in the SOFA (and thus the Protocol) with a 60 days’ notice to the other Parties, on the condition that immediate consultations are conducted to agree on ‘suitable provisions to replace the provisions suspended’.
The provision has not been evoked and Lazareff describes it as ‘a compromise, lacking realism’.96 The reason for including the Article in NATO SOFA is that unless a treaty contains a specific Article on denunciation in case of hostilities, the treaty generally remains in effect. NATO SOFA is developed to support military co-operation in peacetime. It is not per se designed to support cooperation between Allies in times of crisis and war. Art. XV is quite clear when it comes to the issue of claims: NATO SOFA claims provisions do not apply to war damage. It is however not so clear when it refers to Art. VII and the remaining parts of the agreements—the SOFA remains in force but the Parties may agree on modifications.
Art. XV, para. 2 is trying to combine two procedural approaches: That SOFA will remain in force in case of hostilities (except for Art. VIII, paras. 2 and 5 with regards to war damage) until modifications are agreed but granting at the same time the Parties the right to denounce the SOFA or selected SOFA provisions without having an alternative in place. One could argue (and Lazareff97 does so) that para. 1 becomes meaningless since para. 2 is not subordinated to para. 1. This means that the Parties in case of hostilities can denounce the NATO SOFA in accordance with para. 2 without first having tried to resolve the legal void that may be caused, if the SOFA or the Protocol are denounced in case of hostilities.
(ii) NATO SOFA Art. XVII—Revision
This short provision appears to be very straightforward: all Contracting Parties can request revisions, at any time, and requests are to be forwarded to the North Atlantic Council. The provision was not subject to lengthy debate by the drafters: The first draft98 was presented in References(p. 478) conjunction with Art. XVI99 and it passed without discussion. While both the NATO SOFA and the Protocol remain unrevised, Art. XVII possess an interesting question as to how the North Atlantic Council would approach a request for revision. Lazareff suggests100 that the Council will ‘… act as an intermediary and it is very likely that the procedure of revision would be done under its auspices’. It is Lazareff’s understanding that the Contracting Parties thus have denounced their sovereign right to ‘direct negotiations’, and accordingly the Parties have derogated from the principle of State sovereignty.101 An alternative scenario would be that the Council defers the revision to the Sovereigns, rather than approaching a revision as a matter for the Council itself. By appointing a forum in which all the Contracting Parties are represented and which makes it decisions by consensus, it could argued that the Contracting Parties have in fact not limited their sovereign rights, they have merely nominated a forum to address a request, and the Council may direct the desired procedure to be applied in response.102 It is apparent that all States Parties to either the SOFA or the Protocol would participate in this process and be required, at the State level, to endorse revisions, particularly as a matter of signature and ratification.
(iii) NATO SOFA Art. XVIII—Ratification, deposit, entry into force of, and accession
The wording of this Article largely corresponds to the initial draft of the SOFA.103 In para. 2 the Working Group added104 that the SOFA would come into force upon the ratification of four Signatories,105 and responding to a later proposal106 the text in para. 3 was adopted,107 allowing the Parties to make accession of new Parties subject to conditions.
Para. 1 does not establish a timeline for ratification or for the deposit of ratification instruments; it does however encourage the signatory States to deposit their ratification ‘as soon as possible’. The wording was a duplicate from the Brussels Agreement, but the Working Group also recommended the expedited implementation and entry into force of the SOFA as well as the Protocol. In the meeting of the Juridical Subcommittee 23 February 1951,108 References(p. 479) the Canadian delegate encouraged his colleagues to press ahead with implementation wherever administratively possible, pending ratification, and both the Subcommittee and the Working Group on Status109 requested the Chairman of the Working Group to stress the need for prompt implementation in his report to the Deputies.110 Similarly, when the Protocol was being finalized and submitted to the Council, the cover report invited the Council to propose that the Protocol be applied provisionally, and the recommendation was followed by the Council just as the first Supplementary Agreements were being developed and concluded at this time.111 Despite the efforts of the Working Group, the NATO SOFA only entered into force on 23 August 1953, between France (the first State to ratify), Norway, Belgium, and the United States. All the signatory States had ratified the SOFA by 1955. The Paris Protocol came into force on 10 April 1954, but was applied to the Allied Headquarters already stood up also prior to this date. General Eisenhower was already appointed Supreme Commander on 18 December 1950, and a nucleus of SHAPE had been established.112 SHAPE officially came into being on 2 April 1951, well before the NATO SOFA and the Paris Protocol were concluded, and was the first international organization within the NATO family, and in spite of not having a treaty in place at the time, SHAPE administered its own budget,113 had its own [interim] facilities at the Hotel Astoria114 and, since 10 January 1951, an international staff.115 In hindsight, it begs the question if the Council’s ‘resolution’ had the power to be legally binding.116
NATO SOFA and the Paris Protocol are open to accession. Para. 3 establishes the condition and procedure for the process of accession: The SOFA and its Protocol are only open for accession by those States, which have acceded to the North Atlantic Treaty, and only upon the approval of the Council. The Council is furthermore free to attach (more) conditions to the accession. The suggestion to make accessions conditional was not included in the first drafts, but was inserted because ‘it is not known in what circumstances other States might accede to the North Atlantic Treaty’117 yet it was not discussed, what such circumstances might be.118
(iv) NATO SOFA Art. XIX—Denunciation
Art. XIX states the procedure, the forms, the authority and the effects of denunciation, and the Article remained unchanged from it was proposed in the draft presented by the US and until the SOFA was presented for signature, just as the Article appears not to have been subject to discussions in the Working Group or in the Juridical Subcommittee.120 The NATO SOFA and the Paris Protocol are concluded for an unlimited period of time and does not state specific conditions that would cause termination.121 Art. XIX, para. 1, provides that any of the Contracting Parties are free to unilaterally withdraw from the SOFA (denounce) and thus the Protocol, the only condition being that it has been in force for four years. It is unclear, why the term of four years was chosen, rather than 10 or 20 years (as compared to the North Atlantic Treaty), but it is most likely that it is the result of duplicating the Brussels Agreement.
Art. XIX, para. 2, directs the form and process of denunciations, while para. 3 delays the denunciation by one year counted from the date of receipt of the notification.
This Article has been in use, not to denounce participation in the NATO SOFA, but when France denounced its participation in the Paris Protocol (effective 31 March 1963; as of 11 September 2016, France is again a Party to the Protocol).
(v) NATO SOFA Art. XX—Territorial application
The North Atlantic Treaty, Art. 6, declares that the North Atlantic Treaty area consists of the territories of the NATO States in Europe and North America, the territory of Turkey and the islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer. Forces, vessels and aircraft of the NATO states are also representing ‘a territory’ in so far as they are stationed in or over the said territories or in the Mediterranean Sea.122 The NATO SOFA and the Paris Protocol, however, only applies to the ‘metropolitan territory’ of the Contracting Parties.
The discrepancies between this provision and the various statements in the NATO SOFA (and repeated in the preamble of the Protocol and its Art. 2 as both refer to the ‘territory of a Party in the North Atlantic Treaty area’ without distinction to the metropolitan territory) is discussed in more detail Chapter 31. Here it suffices to conclude that although the statements in the NATO SOFA and the Protocol may be inconsistent with the distinction in Art. XX, and granted that the NATO SOFA does not define ‘metropolitan areas’ it must be assumed that overseas territories are excluded from the definition.123 Additionally, several States have made References(p. 481) reservations to the geographical application of the NATO SOFA (and to the PfP SOFA), but none of these reservations are repeated in the ratification of the Protocol.
To bridge between the definition in the North Atlantic Treaty and the wording in the SOFA, the drafters included para. 2 to Art. XX, whereby a Party unilaterally may extend the geographical area of application. This possibility has been used on a few occasions. Similarly, para. 3 of Art. XX allows a Party to independently and unilaterally denounce an extension of the SOFA to a non-metropolitan area. The denunciation shall follow the procedures agreed in the SOFA, Art. XIX.
The Paris Protocol depends on and recognizes the need for supplementation. The NATO Headquarters and the Supreme Headquarters are not parties to the three main NATO status agreements (or their Partnership for Peace (PfP) equivalents), but Art. 16 in the Paris Protocol authorises the Supreme Headquarters to conclude Supplementary Agreements with the States parties to the Paris Protocol, and some of the individual provisions equally suggest that bilateral arrangements be concluded (Art. 8, para. 1). Areas for complementing arrangements were identified already during the negotiations of the Paris Protocol, such as functional immunities to be granted to Flag and General Officers, and the operation of post offices either by nations or by an Allied Headquarters. Over the years, Supreme Headquarters Allied Powers Europe (SHAPE) and Headquarters, Supreme Allied Commander Transformation (HQ SACT) have separately and, in the past ten years, jointly concluded Supplementary Agreements with several NATO Member States. The Supplementary Agreements principally accord the same status and entitlements to be enjoyed by Allied Headquarters, but some are worded differently as they have transpired over a period of nearly 70 years. In recent years, a template Supplementary Agreement has been developed in an attempt to capture NATO practice, agreements in effect, and NATO regulations and policy (where such apply), as well as general norms of public international law. Currently eight Supplementary Agreements have been signed using this template.124
Generally, the Supplementary Agreements confirm and complement the status granted under the Paris Protocol/Further Additional Protocol125 and thus the NATO SOFA/PfP SOFA. They elaborate on the immunity enjoyed by an Allied Headquarters, and reaffirm References(p. 482) the inviolability of its premises, archives, documents, and the functional immunities to be afforded to flag and general officers. The Supplementary Agreements also address allocation and operation of facilities, use of flags and emblems, freedom of and access to means of communication, security and force protection. They direct reporting of assigned personnel; they provide detailed arrangements for operation, registration and licensing of vehicles, carrying and storage of arms, access to banking facilities, and measures to be considered with regard to public hygiene, environmental protection and health and safety. They serve to confirm tax exemptions enjoyed by an Allied Headquarters and the right to operate canteens and other facilities. They also identify fiscal privileges of the members of the Headquarters. Of equal importance, they elaborate on definitions, extend entitlements and waivers, for example, on visa and residency requirements for civilians and dependents.
In many ways, the Supplementary Agreements are, with Serge Lazareff’s conclusion in mind, an acknowledgment of the will of the Alliance, both collectively and individually among its Member States, to make the SOFA and the Paris Protocol work so that it is practised in a manner that makes it remain valid and relevant.126 In the daily application of these agreements, and this extends particularly to the Paris Protocol, it is equally important that this practice is consistent with the norms in public international law as they relate to international organizations. This approach is reflected in the Supplementary Agreements concluded to implement and complement the Paris Protocol. In turn, Allied Headquarters must provide good management and stewardship of the entitlements granted to them and their staff in the Paris Protocol and the Supplementary Agreement. This jointly serves to facilitate coordination and the necessary partnership with the Receiving State to ensure the effective functioning of Allied Headquarters and the continuous exercise of respect for Receiving State law.
Supreme Headquarters have juridical personality, which sets their legal status (legal personality, legal capacity and competence).127 The Paris Protocol, Art. 10, specifically reserves this position for the Supreme Headquarters.128 Accordingly, SHAPE and HQ SACT both have legal or juridical personality under international law in the international and domestic domains. They are also subjects of international law as international organizations. The legal capacity is the operational or dynamic aspect of legal status.129 The Supreme Headquarters operate within the domestic legal systems of particularly the States participating in the Protocol;130 and duly authorized by their mandate, Supreme Headquarters enter into treaties with NATO and non-NATO States. Because of the distinct legal status of NATO civil and military bodies, Supreme Headquarters also enter References(p. 483) into formal agreements with other NATO bodies.131 At the other end of the spectrum, they apply their legal capacity to enter into employment contracts with their directly hired employees and, of course, they continuously enter into commercial contracts for supplies and services.
The language of Art. 10 was included in the early drafts and was initially driven by the prospective French ownership of NATO funded installations in France, consistent with French law and presented as a French position in the draft SHAPE—France bilateral arrangement.132 The Article changed in more ways over the short time of drafting the Protocol. The initial draft only envisaged SHAPE to hold ‘capacity to conclude contracts and to acquire or to dispose of property,’ and the exercise of this capacity was limited to when ‘necessary for the fulfillment of its tasks’.133 The reference to SHAPE was replaced by ‘Supreme Headquarters’ in the following draft,134 and it was, at the request of the Chairman of the Working Group, acknowledged that the Supreme Headquarters would ‘possess juridical capacity’. The reference to functional necessity was removed shortly after in response to a discussion in the Working Group on 22 January 1952135 and the deletion of the reference was confirmed a few months later in a subsequent meeting. In the same meeting, the US representative agreed not to pursue a suggestion to delete the assertion that the exercise of juridical capacity can be made subject to specific arrangements at the request of the host State, with the observation that ‘Supreme Headquarters could not be limited by the receiving State in the exercise of functions which it considered necessary.’136 Art. 10 authorizes a Supreme Headquarters to delegate authority to subordinate Headquarters to ‘act on its behalf’, and identifies that the ‘receiving State may […] make the exercise of such capacity subject to special arrangements’ but there is no single, substantive instance of this.137
When comparing Art. 10 of the Protocol with the Ottawa Agreement, there are a few noticeable differences. The Ottawa Agreement is largely a verbatim copy of the convention on status adopted for the UN, while the Paris Protocol rides on the back of the NATO SOFA. Specifically, the Ottawa Agreement, Art. 4, does not envisage special arrangements to be concluded with the Host State to regulate the exercise of the organization’s juridical personality (but seat agreements are envisaged under Art. 25 of the Ottawa Agreement), References(p. 484) nor does it direct or limit the juridical personality to be exercised by, for example, the Council; in fact, a reference to the Council was deleted from the draft Agreement.138 Finally, the Paris Protocol apparently does not identify the capacity for a Supreme Headquarters to institute legal proceedings. However, this is not to suggest that the Supreme Headquarters are limited in this regard, since the interpretation of Art. 11 and practice show that they use their legal personality to do so.139
(a) National legal personality and legal capacity of Supreme Headquarters
The legal personality of international organizations is not a common standard or ‘one for all’; it mirrors the specifics of the circumstances of a given organization and its mission, whereby the situation of the organization directs both the rights and duties140 of that organization without the need to define them.
The legal personality of an international organization has traditionally been approached differently both as a matter of theory and in practice, and there has been three schools of thought: a) one subscribes to the foundational document attributing legal personality to an international organization (subjective legal personality), b) another proscribes that the existence of common structure(s) distinct from that of the constituent States gives ipso facto legal personality to that organization (objective legal personality),141 and c) finally, the personality of international organization is the result of the mere fact of that the organization exists, since they are empowered by their task and function.142 While a Supreme Headquarters satisfies the condition of all three, the Paris Protocol, by explicitly reserving the juridical capacity to Supreme Headquarters, directs that a subordinate Allied Headquarters operates in the Receiving State only when duly authorized by its superior Supreme Headquarters and within the delegated authority.143
Looking first at the capacities explicitly identified in the Article, the Supreme Headquarters are legally capable to conclude contracts (employment contracts as well as contracts for maintenance and other commercial services and goods) and to acquire and dispose of property (moveable and immovable). The right particularly to acquire and dispose of immovable property while remaining consistent with agreed procedures were elaborated on in the early Supplementary Agreements,144 and while the more recent agreements repeat the right to acquire and dispose of immovable property, the internal procedures on approving the funding of military capabilities and the acceptance of such capabilities to NATO’s inventory already ensures that the future Host State is involved References(p. 485) at the front end of an infrastructure project and this may have mitigated the concerns expressed in the early years of NATO and the military command structure.145 Similarly, the right to conclude contracts is well established and managed in internal NATO procedures, such as the NATO Financial Procedures and Regulations.146
The absence of an explicit reference to the right of Supreme Headquarters to institute legal proceedings should not be interpreted as a lack of authority to engage in legal proceedings. Rather, this should be read also in the context of particularly Art. 11, para. 1, as well as other provisions that direct the applicability of Receiving State legislation to an Allied Headquarters, such as Art. 3, para. 2, of the Protocol. This may offer an explanation (or a perspective) as to perhaps why the drafters did not include the explicit notion, similar to that found in the Ottawa Agreement.
Art. 11 states that ‘[S]ubject to the provisions of Art. VIII of the Agreement, a Supreme Headquarters may engage in legal proceedings as a claimant or defendant.’ The statement could be read as connecting the juridical personality of the Supreme Headquarters with the application of the claims procedures in the SOFA (Art. VIII) to an Allied Headquarters, as prescribed by Art. 6 of the Protocol. But, it appears that the drafters wanted to identify that the Supreme Headquarters had the same standing (and obligations) as a Sending State under Art. VIII of the SOFA and instead address contractual claims in Art. 11, para. 1. Particularly because the claims provisions in the Protocol, Art. 6, and the SOFA, Art. VIII, specifically are based on the principles of waiving claims inter partes and of substitution (not representation) of the Sending State by the Receiving State in case of third-party claims against the Visiting Force, while Art. 11, para. 1, captures the option for a Supreme Headquarters to institute legal proceedings, pursuant to the application of Receiving State law to its activities, be it in the role of employer of locally recruited employees under the NATO SOFA, Art. IX, para. 4; to pursue affirmative claims against a tortfeasor; or to pursue contractual redress, if so agreed under the terms and conditions of a commercial contract. Despite the (implied) intentions of the drafters, the latter will rarely be the case since contractual disputes are sought to be resolved through other means such as arbitration, as the Supreme Headquarters (similar to other international organizations)147 seek to avoid appearing in national courts, except to uphold immunity from jurisdiction or execution, or to seek compensation for damages inflicted on the Headquarters by an outside party (affirmative claims, which are not covered by the NATO SOFA, Art. VIII, or by the Protocol, Art. 6). And, when appearance is required to recover a loss (or otherwise), the Supreme Headquarters, as the first step, request the Receiving State in which the case is filed, to represent it before the national court, consistent with Art. 13 of the Protocol and confirmed in Supplementary Agreements.
(b) International legal personality and legal capacity of Supreme Headquarters
All Allied Headquarters have objective international legal personality. Those being Supreme Headquarters have also subjective legal personality. When Supreme Headquarters (p. 486) empower subordinate Allied Headquarters, these will have also subjective legal personality. Supreme Headquarters, and Allied Headquarters, are a subject of international law and because they operate [subordinate Allied Headquarters only when empowered] in the international plane, they are recognized by NATO members, and by non-NATO States. Supreme Headquarters, inter alia, conclude agreements with Member and non-Member States,148 contract goods and services with non-NATO members,149 and performs other functions in support of operations consistent with and under the mandate of that operation.150
Just like most other treaties and conventions regarding status of international organizations, the Paris Protocol does not define or direct the international legal capacity of the Supreme Headquarters, but relies on the customary notion codified in Art. 6 of the draft Convention on the Law of Treaties between States and International Organizations (1986): ‘The capacity of an international organization to conclude treaties is governed by the rules of that organization.’ Authority is granted to Supreme Headquarters in the Protocol, Art. 16, to conclude bilateral agreements to supplement the Paris Protocol, and the Supreme Headquarters frequently enter into other arrangements and agreements with NATO States, as well as non-NATO nations,151 with other international organizations,152 (and with academia and industry.153) Not all the arrangements are international or necessarily considered binding under international law, but the common denominator is that the competence to do so derive from the internal legal order of NATO bodies, such as Allied Joint Publications, approved conceptual frameworks, standing instructions and tasks issued to the Supreme Headquarters through the military structure or ad hoc, and thus remains subject to internal instructions. This is a long-standing practice on the part of NATO Headquarters and the Supreme Headquarters, and while the discussion regarding from where an international organization may derive its international juridical personality is both appropriate and very noteworthy, the conclusion in this context is that Supreme Headquarters are pursuing legal activities at the national and the international level with NATO and non-NATO States, and are doing so consistent with the assumption that ‘the possession of international legal personality is dictated by the functions and purposes of the organization as laid down in its constitution; more tha[n] by a strict legal formulation (which is absent in most cases) bestowing international legal personality’.154
(p. 487) 5. Inviolability of an Allied Headquarters and immunity from jurisdiction (Paris Protocol, Arts. 11 and 13; NATO SOFA, Art. XI, para. 3)
As already described, international organizations generally enjoy immunities and privileges to protect the organization, as well as its premises, property, and documents. This does not relieve the organization from the obligation to respect Receiving State law,155 or from ‘abstain from any action that would bring about the international responsibility of its members under their own international human rights obligations’.156 As such, both the international organization and the participating States, through the approval of dispute settlement remedies or endorsement of staff regulations, would seek to ensure that obligations under (for example) Human Rights Treaties are not compromised. Even if an international organization fails to provide alternative means of effective settlement, the European Court of Human Rights has found that this does not bring the matter within the jurisdiction of a national court as this would ‘endanger the organization’s proper functioning, since national courts are only competent to apply national law, necessarily disregarding the staff regulations and rules enacted by the international organizations’.157
Immunity from jurisdiction, on the other hand ‘(a) Constitute a right not a courtesy; (b) They are intimately bound up with the functions of the international organization to which they are accorded; (c) They should not be used to nullify the grounds on which they were granted and to challenge justice.’158 It is in this light that the status of Allied Headquarters and inviolability of its premises, documents and archives as well as immunity from legal process will be discussed here.
The Ottawa Agreement, Art. 5, exempts NATO ‘from every form of legal process’ in the Member States. The Paris Protocol does not have a similar and distinct statement. This may be attributed to the Paris Protocol’s relation to the NATO SOFA, which again is a reflection of the status of sovereigns and thus of the immunities enjoyed by sovereign States in their mutual relations. The following observation was made to the draft Article on the inviolability of documents, but it also frames the predicament of extending the status of Sending States, as laid down in the NATO SOFA, to an international organization: ‘It can be understood that a sending State would have sovereign immunities but not, normally, a Supreme Headquarters. How is this to be reconciled?’159 An answer to the question is not found in the Travaux, but as pointed out already, the Paris Protocol was being drafted at a point in time when concept of status enjoyed by international organizations was developing, whereas today it is the norm that stationing agreements include specific regulations on immunities and thus establish the ‘non-application of domestic legislation [which] push aside national mechanisms for supervising and enforcing the law, with as its main rationale securing the independent position of the organization’.160
The reference in Art. 11, para. 1 to ‘may engage in legal proceedings as claimant or defendant’ means that the Headquarters has legal competence before the domestic courts References(p. 488) of a Receiving State. However, the capacity to appear in court is completely independent from that of invoking the immunity of jurisdiction.161 The implied immunity from jurisdiction in the Paris Protocol162 versus the express one in the Ottawa Agreement, does not per se suggest that an Allied Headquarters does not enjoy immunity or its premises are not inviolable; the Paris Protocol, and in particular Art. 11, para. 1, does not submit an Allied Headquarters to Receiving State jurisdiction; nor does it expressly mention immunity from jurisdiction. The corresponding inference is that the Paris Protocol provides Allied Headquarters with limited, but functional, immunity.163 The limitations were dictated by the drafting States; there were different positions tabled but particularly France opposed in its negotiations of an agreement with SHAPE to the inclusion of specific immunities similar to those adopted in the Ottawa Agreement, which comes to confirm France’s concluding studies to the Council of Deputies in D-D(52)2, dated 3 January 1952, which assigned to the Ottawa Agreement a supplementary role to the NATO SOFA and the Paris Protocol.
SHAPE identified in the course of the negotiations that the most important immunity was to protect the archives and documents of an Allied Headquarters from being attached by the authorities of the Receiving State. It is interesting how the Paris Protocol may have been seen as limited in capturing immunities and privileges, yet it may at the same time be argued that the immunity from jurisdiction is functionally inseparable from that of inviolability of the premises, documents, and archives as well as immunity from execution.164 While the language found in the Protocol itself may appear limited, the understanding of the legal position enjoyed by Allied Headquarters is suggested to be approached consistent with present function-based legal standards and with the supplementary agreements to the Paris Protocol.
The status pursued as a matter of international law and practice under the Supplementary Agreements is coherent with the functional status enjoyed by NATO entities both under the Paris Protocol and the Ottawa Agreement and preserves the nexus between the different parts of NATO governing treaties. This is furthermore coherent with the statement in the Travaux Préparatoires165 that the status provided to Allied Headquarters under the Paris References(p. 489) Protocol is analogous to that created for the North Atlantic Council and its subsidiary bodies in accordance with the Ottawa Agreement.
(a) Inviolability of premises
Inviolability of the premises of an international organization is usual; it protects the organization and prevents the premises to be accessed without the prior consent of the international organization.166 There are two corresponding obligations attached to this immunity: A responsibility on the part of the organization to not misuse the inviolability and an obligation on the part of the Receiving State to ensure adequate safety and protection of the premises. The inviolability does not affect the application (or non-application) of Receiving State law.167
Again, unlike the Ottawa Agreement, no reference is made directly in the Paris Protocol to the inviolability of the premises of an Allied Headquarters. However, the obligation for the Receiving State to provide protection of the premises of an Allied Headquarters follows from the general reference to the application of the SOFA in Art. 2 of Paris Protocol, and the obligation on a Receiving State in the SOFA, Art. VII, para. 11, to ‘ensure the adequate security and protection within its territory of installations equipment, property, records, and official information’.168 At the same time, the right of an Allied Headquarters to police its premises is expressly granted in the Protocol, Art. 3, para. 2, by considering an Allied Headquarters a ‘force’ for the purpose of the SOFA, Art. VII, para. 10. This was added in June 1952, and the reference replaced a separate draft Article specifically authorizing an Allied Headquarters to policy its premises consistent with the NATO SOFA, Art. VII, para. 10, with its own military police.169 The change made in June 1952 did not alter the substance of this right, but appears to have been done as a matter of streamlining the references to the NATO SOFA. Therefore, while the Paris Protocol does not explicitly grant inviolability of an Allied Headquarters premises, the two Articles cited above do afford status and protection to an Allied Headquarters, to the same extent as inviolability is conceded on a Sending State and its premises under the NATO SOFA. Additionally, the inviolability of premises is repeatedly stated in the Supplementary Agreements to the Paris Protocol, identifying also the authority of the Headquarters to consent to Receiving State authorities (or third parties such as visitors) performing permitted functions within the Headquarters premises used (occupied) by it consistent with local host agreements. Arguably, the Paris Protocol may have been seen as limited in its immunities and privileges, but in today’s context, it may equally be submitted that the immunity from jurisdiction is a customary norm in international law170 and (p. 490) functionally inseparable from that of immunity from execution,171 and therefore the Paris Protocol, consistent with the Supplementary Agreements, should be understood accordingly.172 Or, with the notion of A. S. Muller ‘[t]he prima facie decision if the organization is immune or not, is for the organization. […] If this was not the case, the organization would risk being exposed to discretionary measures by the host state.’173 This would give a single Member State the means to directly interfere with the organization, outside the constituent procedure adopted for the international organization. Consequently and consistent with the standards in international law and subject to national law on status of international organizations, the Paris Protocol, its supplementary agreements, as well as NATO internal regulations adopted by the Council through consensus (‘rules of the organization’), it is submitted that the Supreme Headquarters, in the implementation of their functions and purposes, enjoy immunity from jurisdiction in the Receiving States, while they are required to comply with the specific obligations identified in the Paris Protocol in the same manner as this applies to a Sending State under the SOFA, such as cooperating on the collection of evidence to facilitate customs investigations. ‘L’immunité juridictionnelle est … une nécessité inéluctable pour les organisations internationales et une condition de leur bon fonctionnement.’174
The immunity may not be absolute, but should at the same time respect and remain coherent with and loyal to the functions and purposes of the international organization. The immunity also comes with an expectation that the organization provides access to ‘adequate means of redress to compensate for its immunity of jurisdiction’.175 However, if those remedies or means are not used or exhausted by the other party, the claim will not have any basis to be heard before national courts, not even under the ECHR.176 For Paris Protocol entities, the claims provisions found in the Paris Protocol, Art. 6, are a clear example of how (non-contractual) third-party claims against an Allied Headquarters are settled. Additionally, contractual disagreements with commercial entities are typically addressed through contract dispute177 clauses and, eventually, litigation, whereas internal dispute settlement for international staff members is provided through the NATO References(p. 491) Civilian personnel Regulations (NATO Administrative Tribunal178), consistent with the practice in international civil service: ‘[R]elationship of an international organization with its internal administrative staff is non-commercial, and, absent waiver, activities defining or arising out of that relationship may not be the basis of an action against the organization—regardless of whether international organizations enjoy absolute or restrictive immunity.’179
Accordingly, a staff member’s complaint should not be entertained in a national court. Particularly in the context of staff complaints, a recurring question for international organizations generally has been if the available, internal dispute settlement procedure conforms with other legal norms such as Human Rights standards for access to a fair trial. Over time, complaints have been filed in national courts, and it has been assessed by the European Court of Human Rights on more occasions. One of the leading cases on this question is Waite and Kennedy v. Germany,180 but of particular interest to NATO entities is also the more recent cases of Gasparini v. Italy and Belgium181 and the decision rendered in Chapman v. Belgium,182 which both observed that the NATO Administrative Tribunal (formerly ‘NATO Appeals Board’) provided adequate means to address complaints submitted by the (former) staff members and the human rights complaints filed against Belgium and Italy in the case of Gasparini and against Belgium in the case of Chapman, were therefore found to be inadmissible and ill-founded. While the cases confirm that the internal dispute resolution process was found to be adequate, NATO undertook in 2011 to review and modernize the process.183
If there is a disagreement as to the extent of immunity granted in the Paris Protocol or as a matter of subject matter jurisdiction then this should be addressed in accordance with the Paris Protocol, Art. 15 (negotiation and no recourse to outside jurisdiction). Most (if not all) Supplementary Agreements have a similar clause (negotiation and no recourse to outside jurisdiction).
(b) NATO International Civilians and NATO Administrative Tribunal
The NATO dispute settlement process for addressing complaints launched by NATO International Civilians establishes a separate area, in which national courts lack subject matter jurisdiction. NATO practice in this field has been consistent over time, and it is comparable with the practice of other international organizations, as it has developed since 1927 with the League of Nations and ILO internal staff tribunals.184 In terms of NATO practice, both the more recent Supplementary Agreements (and the current References(p. 492) NATO Civilian Personnel Regulations185) state that matters pertaining to the employment of NATO International Civilians remain a matter to be exclusively resolved internal to NATO. Whether an Allied Headquarters enjoys absolute or limited immunity from Receiving State jurisdiction therefore becomes a void discussion in the context of complaints filed by NATO International Civilian staff members.
(c) Headquarters’ property and funds and immunity from execution measures
Art. 11, para. 2, grants an Allied Headquarters immunity from ‘measures of execution or measure directed to the seizure or attachment of its property or funds’.
It is necessary to accept an exception to the immunity when the Allied Headquarters and Receiving State cooperate either in securing evidence in criminal cases or in support of Receiving State investigation of customs or fiscal offences. While this provision is focused on property and funds, it may also be linked to the inviolability of the premises of an international organization and the inviolability of its documents and archives.
There is no explicit provision protecting Allied Headquarters’ property (other than documents and devices containing information) from search, except where it flows from the NATO SOFA (for example, service vehicles are exempt from customs search and from seizure), but Art. 11, para. 2, protects Allied Headquarters funds and property from being subject to execution (as part of a legal process, be it administrative or judicial), seizure or attachment. The provision has only been applied on a few occasions.
While the application of the NATO SOFA to an Allied Headquarters may direct substitution in case of third-party claims for compensation or instruct cooperation with Receiving State authorities in sharing evidence and investigatory information in support of criminal proceedings pursuant to Art. VII of the NATO SOFA, Art. 11 remains a key provision as it provides general protection to an Allied Headquarters property and funds from actions taken by individual Member States or in the rare cases when an Allied Headquarters is requested by a private individual or entity to assist in executing judgments against staff members typically by withholding staff members’ salaries. Consistent with Art. 11, para. 2, (and coherent with the practice of the UN), such requests are refused since the salaries to be paid remains NATO funds, and thus protected by the Allied Headquarters’ immunities, until transferred to the staff member.
(d) Inviolability of Allied Headquarters archives and documents
In comparison, the Paris Protocol, Art. 13, provides that an Allied Headquarters’ archives and documents are inviolable, no matter if the documents are kept within the Headquarters or carried by authorized personnel. It is suggested that ‘archives and documents’ should be understood consistent with NATO policies as ‘[a]ll NATO records, regardless of form, medium or classification level, are the property of the Organization and are subject to the provisions of articles VI and VII of the Ottawa Agreement and/or of article XIII of the Paris Protocol’.186 Additionally, the immunity from customs search and inspection References(p. 493) granted under the NATO SOFA, Art. XI, para. 3, extends to Allied Headquarters through the Paris Protocol, Art. 8, para. 2.
In terms of the protection of documents and archives, the Paris Protocol is consistent with the traditional view of the functional status of international organizations (as compared to diplomatic missions).187 Again, the most prominent examples are the Convention on privileges and immunities of the UN and the subsequent Convention on the privileges and immunities of the Specialized Agencies. Similarly, the Ottawa Agreement provides in Art. 7 that NATO archives and all documents ‘belonging to it or held by it’ are inviolable no matter where such documents or archives are located. In reviewing the Travaux it appears, that not much discussion went with the drafting of these provisions in the Paris protocol or the Ottawa Agreement, and a likely conclusion is that this language was considered inseparable from the functions of the organization and that there is no intended discrepancy between the language used in the two provisions; thus ‘the official documents of an Allied Headquarters’ would apply to documents issued by or otherwise held by an Allied Headquarters, consistent with both the Ottawa Agreement and principles in international law protecting both the documents of the organization and those of the Member States or other entities and in the possession of the organization, either due to special arrangements or to its functions.188 There is, however, one noticeable difference between Art. 13 of the Protocol and the corresponding article in the Ottawa Agreement: Whereas the Ottawa Agreement does not foresee the immunity enjoyed under Art. 7 to be waived, the Protocol states that an Allied Headquarters may waive the immunity; not a Supreme Headquarters, but an Allied Headquarters. This is a significant difference since the language used in the Ottawa Agreement could, following the practice of the United Nations, be understood as no waiver is to be granted, while documents and information under certain circumstances may be made available voluntarily and without affecting their immunity,189 yet the same information could be made available by way of an Allied Headquarters decision to waive immunity. NATO internal policies on information management and handling of documents would inform or direct a decision to either waive inviolability or voluntarily providing information, and as such it is considered to be an unlikely scenario that documents or information would be made accessible without prior coordination with at least the pertinent Supreme Headquarters, and whereas this may objectively constitute a waiver, it would remain a decision entirely References(p. 494) to be made consistent with NATO policy, voluntarily, and possibly subject to conditions such as proprietary and protective measures.
(a) Disposal of assets (Paris Protocol, Art. 9)
While Art. 10 vests the right to acquire and dispose of property in the Supreme Headquarters, and Art. 8, para. 2, extends the application of Art. XI of the NATO SOFA to an Allied Headquarters, to include the conditions in para. 8, b. regarding disposal of imported goods, Similarly, Art. IX, para. 3, is one of the provisions made explicitly applicable to Allied Headquarters in the Protocol, Art. 3, para. 2. Although Art. 9, para. 2, does not refer to Art. IX, para. 3 of the SOFA, it is suggested that the two should be read in conjunction as it one institutes an obligation on the Receiving State to facilitate the visiting force and—in this context—an Allied Headquarters by making buildings and grounds available while Art. 9, para. 2, directs the return of such facilities to the Receiving State and the assessment of depreciation or increase in value of the facilities.
While most or all the considerations embedded in Art. 9, para. 1, and in the rationale for including this Article in the Protocol, may have been overtaken by the internal financial regulations of NATO, it represented a specific concern at the time. SHAPE and France had already visited the question in their draft agreement without reaching an understanding on how to settle a loss or gain when property was being disposed of, and the question had been deferred to the Council Deputies.190 A proposal to include an Article mirroring a Council Deputies’ Resolution (1951) on disposal of assets financed by the budgets of Allied Headquarters was tabled by the US in a meeting in March of 1952,191 to give the Resolution treaty force. It was added provisionally to the draft Protocol in that meeting, and was only revisited once when the United Kingdom suggested to explicitly include the possibility to reach arrangements between an Allied Headquarters and the Receiving State, to allow that State to insert some level of control and to collect taxes and duties, if imported goods or property were to be disposed of in the Receiving State. The proposal was withdrawn in the meeting, with the understanding that the Council would address these matters when adopting decisions regarding disposal of Allied Headquarters’ assets,192 and the only further change was the addition of the last sentence giving the Receiving State the right of first refusal to purchase assets being disposed of in its territory.193 Art. 9, para. 1, provides specific directions on disposal of assets acquired from the international funds of an Allied Headquarters. Art. 9 does not specify, if it is limited to assets acquired in the Receiving State, but based on the records of the drafting of the Article it is prudent to assumed it applies generally to any asset procured from NATO international funding.
The second paragraph of what was to become Art. 9 was the main subject of Art. 6 in an early draft of the protocol194 while the draft agreement between France and SHAPE was more instructive and—in the eyes of SHAPE—limited SHAPE’s ability to contract for construction works, leasing premises and setting up service contracts.195 Based on a proposal by the US the Working Group decided to delete the provision from the draft Protocol References(p. 495) with the understanding that future bilateral arrangements between a Headquarters and the Receiving State instead would include a similar provision.196 Consequently, in the following redrafts of the Protocol, the provision was no longer included197 but it remained a topic of discussion and was elevated to the Council Deputies.198 The US proposal to replicate the Council Deputies resolution on disposal of common-funded assets may have both introduced para. 1 of Art. 9 and restored a revised para. 2.199
Art. 9, para. 2 only refers to immovable property200 and while Receiving State law is to be taken into account when establishing if there was a loss or a gain on the part of the Allied Headquarters, this is a consideration and not a specific choice of law201 and should be read in conjunction with Art. IX, para. 3, of the NATO SOFA (‘as far as possible’).
The current and detailed instructions on write-off, disposal and donating common-funded assets are found in NATO Financial Regulations and Financial Rules and Procedures.202 While more Supplementary Agreements allow or inform the process of disposing imported or locally purchased assets to ensure that this is done consistent with procedures agreed with Receiving State tax and customs authorities, these procedures are separate from the financial instructions internal to NATO and the authority retained or delegated in the NATO Financial Regulations. The arrangements guiding disposal of assets belonging to an Allied Headquarters not funded by NATO international funding (common-funding) are not considered bound by this provision and whereas the States involved in the Headquarters may agree to use the principles set out in Art. 9, other arrangements may be reached in the documents establishing such Headquarters.
(b) Bank accounts and the right to hold currency (Paris Protocol, Art. 12)
The right for NATO entities to hold different currencies and operate accounts in any currency203 is identified in both the Ottawa Agreement and in the Paris Protocol, and it is a common feature in host agreements and treaties establishing international organizations.204 For Allied Headquarters, this is found in the Paris Protocol, Art. 12. The article was subject to much discussion due to the exchange rates and currency value at the time, and prior to the provision being implemented SHAPE had to hold bank accounts with the different national banks to conduct transactions.205 The fundamental questions on currencies and transfers were deferred to the Military Budget Committee for resolution, and a reservation from the Netherlands was lifted in the last round of negotiations. References(p. 496) It was noted by both the Italian and the Dutch delegations that the Article does not introduce a direct obligation for the Receiving State to perform transfers or conversions, but rather ‘to facilitate these operations’.206 This may no longer be of much practical importance to the Allied Headquarters funded through NATO international funding when it was included in the Protocol it was another expression of the functions envisaged to be performed by an Allied Headquarters. Today, NATO Financial Regulations and Financial Rules and Procedures provide instructions on currency exchange, budget currency, call for payments, and adjustments in case of inflation, and directs the procedures of opening and managing banking accounts. The supplementary agreements confirm the status granted in the Paris Protocol and add that the accounts be exempt from Receiving State’s currency regulations and from emergency measures. Several of the supplementary agreements also provide an obligation for the Receiving State to guarantee deposits, if NATO international funding is afforded, and to shield Allied Headquarters from ‘regulations against bank and postal accounts’.
The authorization of international organizations to open and operate bank and postal accounts, and operate such accounts in any currency, has been repeatedly recognized in other status conventions and the ILC Special Rapporteur207 identifies exemption from currency control and access to establish bank deposits as general functionalities of an international organization.
The transfer of funds into or between accounts held by an Allied Headquarters sometimes gives rise to inquiries from financial authorities. When the Receiving State is also a member of the EU, an inquiry is typical motivated by EU Directive (DIRECTIVE 2005/60/EC of the European Parliament and of the Council of 26 October 2005) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The question here becomes whether the EU Directive is compatible with fiscal privileges enjoyed by international organizations, as they are laid down in for example the Paris Protocol and their supplementary agreements, or if EU Member States are limited in their implementation of the status of an international organization in this regard. From a reading of the Directive, Art. 2, it appears that the Directive seeks to regulate financial institutions and certain transactions, including defined trades, none of which relate to international organizations. The Directive may affect the financial transactions of international organizations, as would any other national regulation, which the financial institutions are required to comply with regarding transparency, identification, and not holding anonymous accounts. Clearly, the supplementary agreements are not drafted or designed to oppose anti-corruption, anti-money laundering, or anti-terrorist legislation, but this cannot render the Paris Protocol and its supplementary agreements ineffective either. The Paris Protocol and subsequent agreements are intended to permit Allied Headquarters to effectively carry out their functions and purposes and to do so consistently with the principles in international law and within the status so afforded. It is aimed at enabling the Headquarters to conduct banking and to receive transfers of funds to sustain its budget. Equally, staff members who are sponsored by Sending States are likely to References(p. 497) receive their salaries in their State of origin and thus may be required to make regular transfers to meet their financial responsibilities in the Receiving State. It should be clear that neither financial transfers of individuals, nor those of an Allied Headquarters, are anticipated to be indistinct or otherwise lacking in transparency. Nor is it expected that Receiving States use the EU Directive for targeting the accounts or transactions of international organizations. The Protocol on the Privileges and Immunities of the European Union itself recognizes functional necessity in general and fiscal immunities. Art. 1 of the Protocol provides that ‘[t]he property and assets of the Union shall not be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice’. Furthermore, the Protocol specifically states in Art. 11, para. c, that ‘[i]n the territory of each Member State and whatever their nationality, officials and other servants of the Union shall […] in respect of currency or exchange regulations, be accorded the same facilities as are customarily accorded to officials of international organisations’.208
7. Fiscal privileges and immunities of an Allied Headquarters (Paris Protocol, Art. 8, para. 1 and NATO SOFA, Arts. XI–XIII)
The Paris Protocol, Art. 8, para. 1, provides that ‘For the purpose of … , these Headquarters shall be relieved as far as practicable from duties and taxes … in the interest of common defence and for their official and exclusive benefit; each Party 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.’ Art. 8, is not a duplication of the NATO SOFA. The Paris Protocol, Art. 8, is differently motivated and is worded consistent with the principles of fiscal entitlements to be granted to international organization and the purpose was, with the words of Council, to ‘grant Allied Headquarters exemption from taxes and duties to the widest possible extent’.209 In comparison, both the Ottawa Agreement and the UN Convention on Privileges and Immunities provide exemptions from ‘direct taxes’ and from ‘customs duties’. This language also occurred in the 1949 General Agreement on Privileges and Immunities of the Council of Europe.210
There are several references in the Protocol to the fiscal clauses of the NATO SOFA; Art. 3, para. 2 directs the partly application of Arts. IX (with the discrepancy discussed above) and XIII of the NATO SOFA to Allied Headquarters. Art. XIII is also identified in the Protocol, Art. 4, para. b, as an obligation attaching to both the Sending State and the Allied Headquarters. Accordingly, the Headquarters and the States attaching its personnel to an Allied Headquarters are equally obligated to cooperate and assist local customs and fiscal authorities to prevent misuse of privileges, and to conduct investigations into possible offences. While a direct reference to Art. XII (the right of the Receiving State to submit fiscal concessions to preventive conditions) is not adopted by direct reference in the Protocol, however, this stipulation is considered to apply in the context of an Allied References(p. 498) Headquarters (and their Receiving States) by way of the general extension in the Paris Protocol, Art. 2 as a right for the Receiving State since Art. XII does not introduce ‘rights or obligations … upon the sending State’ (Art. 4).
The NATO SOFA, Art. XI, applies to an Allied Headquarters by the extension in the Protocol, Art. 8, para. 2, to import and export of the Allied Headquarters and its staff members, where so permitted. Some of the provisions are discussed in more detail in other parts of this Chapter, and the main point to be made here is that Art. XI, paras. 1, 7, 8, and 9 seek to balance the interests of the Sending and Receiving States. Exemptions and fiscal entitlements are provided in support of the visiting force and to facilitate its mission, and there is a corresponding requirement that entitlements are managed to avoid abuse and any reverse effects on the local Receiving State economy. Accordingly, and unless so stated in the NATO SOFA (or subsequent supplementary agreements) ‘… members of the force and of the civilian component as well as their dependents shall be subject to the laws and regulations administered by the customs authorities of the receiving State … ’ (Art. XI, para. 1). The scope of the exemptions (or lack thereof) is further defined in Art. XI, para. 7.
Apart from the practical implementation of the exemptions, there are three terms within the paragraph that regularly are revisited in discussing the implementation: what constitutes ‘duties and taxes’ and what was meant by ‘as far as practicable’, and are tax exemptions preconditioned by concluding ‘an agreement to give effect to this provision’.
(a) Defining ‘tax and duties’
A tax is generally understood as a compulsory contribution to state revenue, levied by the government on income, assets, transactions, estates, licences, or added to the cost of goods, services, and transactions. There are value added tax, environmental taxes, and related or secondary taxes such as customs duties (tariff or tax imposed on goods when transported across international borders); excise, or excise tax (sometimes called a special excise duty) which typically is an domestic tax on the sale, or production for sale, of specific goods; and import duty which generally is a tax collected on imports and some exports of certain goods.
The Paris Protocol does not define the term ‘tax’, but in part relies on the definitions provided in the NATO SOFA and repeats in Art. 8, para. 4 that ‘the expression “duties and taxes” in this Article does not include charges for services rendered’.211 The NATO SOFA mainly uses the term ‘duty’ yet in some cases it also makes specific reference to ‘taxes’ (see Art. XI, para. 11 on petrol, oil, and lubricants, as well as paras. 2 and 5, regarding road taxes). Based on the definition adopted in Art. XI, para. 12, it is assumed that ‘duty’ is more than excise, customs and other indirect taxes, rather it is: ‘… all [other] duties and taxes payable on importation or exportation … ’ except for ‘dues and taxes which are no more than charges for services rendered’. Notably, the exemptions contained in Art. X (p. 499) (exemption of tax on income and moveable property) of the NATO SOFA do not extend to ‘duties’ as defined by Art. XI, para. 12 (Art. X, para. 3).
The question of what is understood by direct versus indirect taxes per the UN Convention has been addressed by the UN Legal Office and it has been identified that the UN Convention does not refer to direct and indirect taxes in the same manner as a national tax system; if the tax is levied on the UN, no matter how it is labelled (i.e. the burden falls directly on the UN) then a waiver or exemption is warranted under the Convention; and the obligation to exempt United Nations from taxation is to be uniformly applied by all UN Member States and thus the technical meaning of tax terms in varying systems shall not direct the extent of the exemption and thus the immunity granted to the UN.212
Within the EU, standard definitions have been adopted. Value Added Tax, or VAT, in the EU is a general, broadly based consumption tax assessed on the value added to goods and services and charged as a percentage of the price. In the EU context, environmental taxes ‘include energy taxes, transport taxes (including registration and circulation car taxes), and pollution taxes. This is a sub-category of indirect taxes or consumption taxes.’213 In comparison, energy taxes are a sub-category of excise duties in the EU system.214
(b) Understanding ‘as far as practicable’
Shortly before the draft was presented to the Council, the term ‘as far as practicable’ in Art. 8, para. 1, made Italy comment 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’.215 Despite the discussions and re-drafting of Art. 8, the tax exemption was identified as a difficult area to achieve agreement on when it was first presented to the Council on 7 June 1952.216 Council had directed that the draft be re-examined to remove the reservations some States have expressed in regards to Arts. 7, 8, and 12; and for Art. 8 the draft was only passed with the addition of ‘and for their official and exclusive benefit’— an interesting addition since the distinction between acta iure gestionis and acta iure imperii does not apply to international organizations217—all actions are by definition official and conducted consistent with the mission entrusted to the organization.
In 1953 the language was interpreted by the North Atlantic Council. At the time, SHAPE and France were negotiating a host agreement for SHAPE, and the extent of (p. 500) tax exemptions was re-tabled. France was willing to grant exemption from all taxes, but sought—as a matter of principle—that other NATO States would grant a similar status for Allied Headquarters hosted by them or conducting activities in their territories. SHAPE raised this matter with the Secretary-General, and the Military Budget Committee was invited to comment before the Secretary-General submitted the issue for consideration by the North Atlantic Council.218 The Military Budget Committee’s recommendation was very clear: expenses incurred by NATO Military Agencies on the territories of Member States should be exempt from all taxes or fees whatsoever. The exemptions should apply from the date of creating an Allied Headquarters. The Military Budget Committee identifies in its report that this assessment is based on a budgetary perspective and will result in a noticeable reduction of the international budget. At C-M (53) 74, the North Atlantic Council ‘agreed that a note should be prepared by the Secretariat explaining the position of Allied Military Headquarters in regard to tax exemption and indicating the action required to be taken by the Council in this matter’. The Council decision furthermore captures the French position, and confirms ‘to impress upon member Governments the importance, from the point of view of international budgets, of not imposing any taxes or duties on expenditures made in the interest of common defence and, consequently, to recommend member Governments to grant Allied Headquarters exemption from taxes and duties to the widest possible extent. This principle should apply both to expenditures in the country where the Headquarters in question is located and to expenditures by such Headquarters in other member countries.’
The same Council decision further reiterated that France would only continue to exempt SHAPE from taxes if other governments gave Allied Headquarters situated in other host countries tax exemptions under similar conditions. Due to this need for full reciprocity in status, the Council emphasized the need to pursue agreements between member Governments and Allied Headquarters on tax relief, the intention being to provide ‘a comprehensive system of tax exemptions and, as far as possible, cover the equivalent taxes and duties’.219
Finally, the only way to understand ‘so far as practicable’ is (again) in the context of the principle of functionality. On this note, ‘[t]he United States representative said that his Government felt that Supreme Headquarters could not be limited by the receiving State in the exercise of functions which it considered necessary’.220
(c) Are further or separate agreements required?
While Art. 8, para. 1 may articulate an anticipation that further agreements are to be concluded, the simple answer to the question is ‘no’. The 1953 Council guidance encouraging such agreements to be pursued is referenced above, but today practice among NATO Member States more than suggests that in fact no explicit agreement is required. While there are numerous agreements such as the supplementary agreements and the Standing Host Nation Support Arrangements, these confirm the tax exemptions; they are not a precondition for tax exemptions. Instead, NATO Member States have, consistent with the principles in international law, adopted the policy that no Member State (p. 501) should derive revenue from hosting Alliance activities.221 This effectively constitutes the agreement and does away with the anticipation (and highly impractical solution) that each Allied Headquarters should hold agreements with each of the member Nations to give effect to Art. 8, para. 1, as activities often are conducted outside the Receiving State and as such, an Allied Headquarters cannot only rely on a supplementary agreement with that State to ensure tax exemptions on activities conducted in another NATO State (‘operating in its territory’).
Whereas the Paris Protocol, Art. 8, para. 1, provides the general exemption from taxes and duties and specifically from taxes on local purchases, Art. 8, para. 2, then extends the fiscal entitlements of NATO SOFA, Art. XI, to Allied Headquarters, and provides the Headquarters with importation rights (vehicles, equipment), and extends the use of the NATO SOFA Triptique. The following articles of the NATO SOFA are of particular practical importance: Art. XI, para. 3 (exemption of official documents from customs exemption), para. 4 (import and resale of provisions—the right of the Allied Headquarters to operate tax-free canteens, messes and cafeterias for staff members), para. 8 (disposal), and para. 11 (petrol, oil, and lubricants):
Import and re-export: Through Art. XI, para. 4, a (Sending State) force and, by virtue of the Paris Protocol, Art. 8, para. 2, Allied Headquarters, are entitled to import their equipment free of taxes.222 The temporary import and re-export of official vehicles (‘operating under their own power’) is facilitated by the NATO SOFA Triptique, an often overlooked annex to the NATO SOFA, which enables an official vehicle to be imported, operate in, and re-exported from a Receiving State without triggering taxes or duties and while carrying Sending State registration, plates, and nationality markings.
Import of provisions for individual members: NATO SOFA, Art. XI, para. 4, also authorizes import223 of reasonable quantities224 of goods and supplies, free of duty, for References(p. 502) the exclusive use by the military members of a force or, through the Protocol, an Allied Headquarters. The access to such facilities are discussed below in [para. 8.3]. The distribution is usually done through cafeterias (dining—possibly against payment), canteens (shops/outlets), and messes or clubs (servings, support social entertainment—against payment). Some Allied Headquarters leave it with its Morale and Welfare Programme (forming part of the official activities at least under NATO policies, but Allied headquarters outside the command structure may be instructed differently by its internal regulations) to operate the facilities; other Allied headquarters operate all or some through a commercial concessionaire. These Headquarters cannot separate itself from the responsibilities of managing and controlling the performance of a concessionaire since the privilege is vested in the Allied headquarters.
Petrol, oil and lubricants (POL): NATO SOFA, Art. XI, para. 11, provides that special arrangements shall be made by the Receiving State so that ‘fuel, oil and lubricants for use in service vehicles, aircraft and vessels of a force may be delivered free of all duties and taxes’. The obligation for a Receiving State to exempt a force from taxes on POL is the only strict exemption from taxes on purchases made in the Receiving State explicitly included in the NATO SOFA and independent of bilateral arrangements or supplementing agreements.
Disposal: If Receiving State law so permits, the imported effects may be disposed of in that State, but only in accordance with the procedures laid down in its laws (e.g. customs control; follow procedures for removing goods from duty-exemption regimes by paying tax and duties). Similarly, goods procured in the Receiving State by a force, civilian component, and their staff members can be exported in accordance with the laws of the Receiving State (para. 9). NATO SOFA Art. XI, paras. 8 and 9 require attention if a force (and civilian component) is stationed in the Receiving State for a longer period. The provisions often present challenges because the force is inclined to do its procurement locally, yet the Receiving State laws may not necessarily (or consistently) support disposals at the end of use or loss of property, donations, low value gifts to non-entitled, or provide for procedures for removing lost items from the regime of customs and tax exemptions. This is instead addressed in supplementary agreements, allowing for the Receiving State and a headquarters to more effectively address this matter. At the same time, an Allied headquarters (at least within the NATO command structure) has to comply with Art. 9 of the Protocol as well as NATO Financial Regulations.
Supplementary Agreements: Apart from implementing and specifying the exemptions granted in Art. 8, the agreements particularly deal with exemptions from taxes on local purchases, both official and for individuals, and it also addresses sale of goods and disposal of tax-exempt items. It is by far the longest provision(s) in the supplementary agreements as it elaborates on the complex status and dealings with and by both the Headquarters and individuals. It confirms the general principles in the Paris Protocol and international law, but it also facilitates the practical implementation of Form 15.10 (the EU form enabling tax exemptions on Allied Headquarters and personal purchases outside the Receiving State) and the NATO Form 302 (enabling import and re-export of equipment free of duties).
NATO States’ tax exemptions and procedures for their import, export, or purchases are recognized and addressed in specific articles of EU customs and duty directives. Whereas the Paris Protocol entities are to be treated in accordance with their specific governing treaties, included in the same directives are instructions on exemptions are referring (p. 503) exemptions enjoyed by international organizations. For example, the initial Regulation (EEC) No. 2913/92 establishing the Community Customs Code, and its successor, the Modernised Customs Code established by Regulation (EC) No. 450/2008, as well as the Union Customs Code (EU) No. 952/2013 specifically recognize NATO treaties’ exemptions from duties both the import, the export and the re-export of goods for use by NATO States within and outside of the EU. Directive 2006/112/EC (EU VAT Directive) recognizes NATO fiscal entitlements and the exemption from VAT on the supply of goods and services intended for use by a force and civilian component of a NATO Nation (and supplied to their canteens and messes). Directive 2006/112/EC (EU VAT Directive) contains a VAT exemption in for the supply of goods and services to an international organization under the conditions laid down in the constituent document or Headquarters Agreement. With regards to excise duties, Directive 2008/118/EC contains a similarly worded exemption for international organizations, and, in a separate paragraph, for the use of forces of NATO States. Particularly EC No 1186/2009 (Setting up a Community system of reliefs from customs duty), speaks to this in Art. 128 1: ‘[n]othing in this Regulation shall prevent the Member States from granting: (a) relief pursuant to the Vienna Convention on diplomatic relations of 18 April 1961, the Vienna Convention on consular relations of 24 April 1963 or other consular conventions, or the New York Convention of 16 December 1969 on special missions; (b) relief under the customary privileges accorded by virtue of international agreements or headquarters agreements to which either a third country or an international organisation is a contracting party, including the relief granted on the occasion of international meetings;’ (emphasis added).
(i) Import and export
The EU’s regulation of the import and export of goods and services is accomplished in different ways and subject to national implementation. The import, export, and re-export of equipment used for official purposes by Visiting Forces and Allied headquarters from NATO States within EU and to NATO States outside the EU is facilitated by Form 302. This is a NATO Form, developed pursuant to the NATO SOFA, Art. XI, para. 4, and recognized in European Community legislation as a Community transit document for ‘equipment for the force and reasonable quantities of provision, supplies and other goods … ’. Arts. 144, paras. 3(e) and 145, para. 2(e) of the Modernised Customs Code225 provide that internal and external transit of goods can take place ‘under cover of the Form 302 provided for in the Convention between the Parties to the North Atlantic Treaty regarding the Status of their Forces’. As Art. XI of the NATO SOFA applies to an Allied Headquarters through Art. 8 of the Paris Protocol, Form 302 is used by both the Sending State under the NATO SOFA and by Allied Headquarters in accordance with the Paris Protocol. Also Art. 145, paras. 1 and 2, of the Modernised Customs Code, which provides an internal transit procedure that allows for ‘the movement of Community goods from one point to another within the customs territory of the Community and pass through another territory outside that territory, without any change in their customs status’ refers directly to the use of Form 302 and to the NATO SOFA.
References(p. 504) Council Directive 2006/112/EC, on the common system of Value Added Tax (VAT),226 Art. 143, para. 1 (g) exempts from VAT ‘the importation of goods by international bodies […] recognized as such by the public authorities of the host Member State, or by members of such bodies, within the limits and under the conditions laid down by the international conventions establishing the bodies or by headquarters agreements’ (emphasis added). This paragraph recognizes tax-exemptions for Allied Headquarters by not paying VAT on imports into the EU, under the conditions laid down in the headquarters agreements, which here is understood as the Paris Protocol and its Supplementary Agreements. In addition, Art. 143, para. 1(h) exempts from VAT ‘the importation of goods, into Member States party to the North Atlantic Treaty, by the armed forces of other States party to that Treaty for the use of those forces or the civilian staff accompanying them or for supplying their messes or canteens where such forces take part in the common defence effort’.
(ii) Value Added Tax on purchases made in the EU
Reclaiming VAT on purchases made in EU States other than the Receiving State is enabled by Council Directive 2006/112/EC, Art. 151, para. 1(b)227 which exempts from VAT ‘the supply of goods or services to international bodies, […] recognised as such by the public authorities of the host Member States, and to members of such bodies, within the limits and under the conditions laid down by the international conventions establishing the bodies or by headquarters agreements’ (emphasis added). Once again, this paragraph recognizes that Allied Headquarters are exempt from the payment of VAT on goods and services, in accordance with the conditions established in the headquarters agreements. Furthermore, Art. 151, para. 1(d) of Directive 2006/112/EC does the same with respect to exempting goods or services from VAT, when such goods and services are procured in an EU Member State other than the Receiving State, and is intended for the use of NATO armed forces, accompanying civilian staff, to include messes and canteens.228 In practice this is accomplished through the process of reclaiming VAT after it has been paid. Through the authentication procedure of EU Form 15.10., a force or an international organization located in a (Receiving) State that is also an EU Member State, can obtain a waiver or reimbursement on official and private purchases made in an EU country other than the Receiving State. This is only possible on the conditions that the purchased items are exported to the Receiving State, and that Receiving State grants tax exemptions for the same items. It is left to the Receiving State authorities in these cases to provide the certification that the goods/services, for which the exemption from VAT is requested, are compliant with the granted tax exemptions.
Reclaiming VAT on purchases made within the Receiving State is achieved by Art. 151, para. 1(b), which exempts the purchases made by international organizations from VAT, pursuant to the conditions laid down in their headquarters agreements; this includes purchases within the Receiving State. Allied Headquarters are covered by this article. In addition, Art. 151, para. 1(c), contains an exemption for the supply of goods or services within a Receiving State, References(p. 505) when they are intended for use of a force of a NATO State, the civilian staff accompanying them, or for supplying their messes or canteens.229 The Directive has been implemented differently in the different the EU States leading to country-specific reimbursement procedures.230 The interpretation of Art. 151, para. 1(c), of Directive 2006/112/EC has been further clarified by the Court of Justice of the EU (CJEU) in the case C-225/11. There the Court held that ‘… it appears that the objective pursued by the Union legislature in adopting that provision [Art. 151, para. 1(c)] must, rather, be understood […] as being to allow the Member States to honour certain commitments made under the auspices of NATO’.231 The CJEU explicitly stated that it had Art. 8 of the Paris Protocol ‘in mind’ when it adopted Art. 151, para. 1 of the VAT Directive.232 While this ruling focuses mainly on the interpretation of Art. 151, para. 1(c), it makes clear that Directive 2006/112 is constructed with the intention to allow NATO States to ‘honour’ their NATO obligations.233 And therefore this would equally applicable to the exemption granted to Allied Headquarters in Art. 151, para. 1(b), where the transactions are made ‘as part of the common defence effort’,234 i.e. in the performance of NATO’ functions and purposes.
(iii) Excise duties on purchases made in the EU
Directive 2008/118/EC regulates excise duties within the EU.235 Art. 12, para. 1(b) provides that ‘[e]xcise goods shall be exempted from payment of excise duty where they are intended to be used […] by international organisations recognised as such by the public authorities of the host Member State, and by members of such organisations, within the limits and under the conditions laid down by the international conventions establishing such organisations or by headquarters agreements’ (emphasis added). In addition, Art. 12, para. 1(c), contains an excise duty exemption for goods to be used by a force and accompanying civilian staff of a NATO State other than the State charging the duty, and for goods to supply their messes or canteens.
EU State practice is to grant exemptions falling within the scope of Art. 12, by way of reimbursing the excise duties once they have been paid (as is done with VAT exemptions). Reimbursement is regulated by Art. 11 of Directive 2008/118/EC, which provides that an ‘excise duty on excise goods which have been released for consumption may, at the request of a person concerned, be reimbursed or remitted by the competent authorities of the Member State where those goods were released for consumption in the situations fixed by the Member States and in accordance with the conditions that Member States shall lay References(p. 506) down for the purpose of preventing any possible evasion or abuse’. The provision goes on to say that ‘[s]uch reimbursement or remission may not give rise to exemptions other than those provided for in Article 12 or by one of the Directives referred to in Article 1.’236 As mentioned above, an Allied Headquarters, members of a force and the civilian component are exempt from the payment of excise duties by the Directive Art. 12, para. 1. This is effectuated by Art. 13, para. 3, which recognizes a special exemption procedure ‘directly based on the North Atlantic Treaty’. In practical terms, this is facilitated through the authentication of EU Form 15.10, the same Form that is used for the granting of VAT exemptions.
(iv) Resale of goods and EU regulations
Directive 2006/112/EC, Art. 151, para. 1 also regulates the resale of goods and services through providing for a VAT exemption for transactions supplying the messes or canteens of the force and accompanying civilian component of a Sending State. A similar wording is found in Directive 2008/118/EC, Art. 12, para. 1 on excise duties. The term canteen refers to a shop, store or commissary where authorized personnel can make purchases.237 The canteen is an entity that uses a force’s or Headquarters’ legal personality while engaged in the resale of goods and services to personnel entitled to tax and duty exemptions. A mess is understood as a facility for serving meals and beverages, and for socializing, and is often in military terms referred to as cafeteria, dining facility, and club.238
8. An Allied Headquarters, reporting of its staff, and issuance of ID cards by the headquarters and the Receiving State (the Paris Protocol, Art. 5)
An Allied Headquarters is required to furnish its members with a personal identity card, with the information listed in Art. 5 of the Protocol. The identity card is required to be presented on demand, but the Article does not elaborate or provide any instructions as to the purpose of the card. Art. 4 clearly states that the identity card to be presented in combination with a travel order by military members to be exempted from passport and visa regulations is that of the Sending State. Based on wording of the Article and the sparse discussions recorded in the Travaux,239 it could be assumed that the intention was to authorize the Allied Headquarters to issue an identity card that would serve to as the prove References(p. 507) of permission to be present in the Receiving State, rather than carrying their orders to verify their presence and status.
This features some interesting aspects. Firstly, not all members are required to have an order; the travel order was originally intended to support movement of military personnel and not civilians as civilians were required to carry and present their passport (and comply with visa and immigration regulations). Secondly, the self-certification of staff members established in the Article may have been effective at the outset of the Protocol, but in today’s setting this may not prove efficient, unless the identity card is somehow endorsed by an authority within the Receiving State. To overcome any speculations as to the status granted to members of an Allied Headquarters and their presence in the Receiving State, the recent Supplementary Agreements establish that the Allied Headquarters be registered with the Ministry of Foreign Affairs of the Receiving State and that the Ministry issue or authenticate the issuance of an identity card to the members (and their dependents), confirming their status as members of an international organization located in the Receiving State. The identity card does not in itself afford any further privileges or immunities on the bearer; it serves to attest their presence and status in the Receiving State. This does not exempt the Allied Headquarters from its obligation to issue an identity card or to otherwise cooperate with the Receiving State to keep that State aware of the presence of foreign service members on its territory. Nor does the identity card in anyway override the right of a Receiving State to request the removal of a staff member (or dependent) consistent with Art. III of the NATO SOFA or deny entry to a member (or dependents) consistent with the statement submitted by the US upon ratification of the SOFA. An identify card (or a travel order) is not a right of presence; it verifies the purpose of the presence.
A few other issues such as wearing of uniform and carrying of service weapons also remain matters to be addressed between Sending and Receiving States since both are indications of a foreign (Sovereign) presence in the Receiving State; whereas the Supplementary Agreements assigns the duty to regularly report to the Receiving State to identify the staff members (and their dependents) attached to that Allied Headquarters. This is done to ensure that the records of staff members remain accurate and to assist the implementation and application of privileges and immunities.
9. Allied Headquarters’ international staff members and their status under the Paris Protocol Arts. 3, 7, and 8 (paras. 2 and 3)
Staff members attached to an Allied Headquarters either by international civilian employment or secondment by their Sending State hold international posts, perform associated functions, and are required to remain independent, unbiased and effective in executing their international function. The functioning and corresponding status of international civil service is governed by long-standing principles of independence and loyalty to the organization.240 Privileges and immunities both guarantee and correspond with staff members’ commitment to serve the organization and to do so with impartiality and loyalty.241 International staff members assigned or hired from outside the host country References(p. 508) enjoy additional status, but the call for impartiality, independence, and commitment to the international organization is binding upon the entire staff.242 Traditionally, Receiving State nationals employed by international organizations equally enjoy a certain level of privileges and immunities to ensure autonomy and independence.243 Staff recruited locally in non-international posts (the authors’ classification) are generally not afforded functional privileges. However, some agreements do grant status to local employees due to the separate and specific circumstances of the headquarters and its mission.244
In Art. 3, the Paris Protocol defines the categories of personnel enjoying status under the provisions of the Protocol, and while the Paris Protocol is a protocol to the NATO SOFA, the definitions in the two documents are functionally different. It is also worth repeating that it is not a condition that the Sending State is a party to the Paris Protocol to be included in the definitions and thus the categories enjoying status under the Paris Protocol; but the Sending State has to be a party to the North Atlantic Treaty.
Art. 3, para. 1.a uses the same definition as found in the first part of the definition in NATO SOFA, Art. I, para. 1.a, but does not repeat some key features such as ‘when in the territory of another Contracting Party’, which instead is found in Art. 2 of the Protocol. References(p. 509) As such, by way of definition and consistent with the principles summarized above, the Paris Protocol applies to all military members attached (or assigned, a different verb often used to describe the designation to a particular post in an Allied headquarters) by NATO States to an Allied headquarters. It was a deliberate decision to include in the definition the military staff members attached by the State hosting the headquarters and to address any limitations in this regard in the subsequent Articles. This was done in a consensus amongst the drafters: Whereas the NATO SOFA explicitly excludes Receiving State military and civilians, all military members were to be considered as members of the force in regard to the Paris Protocol, but the Sending State retains certain functions (jurisdiction for example). Thereby the State hosting an Allied headquarters is both a Receiving State in terms of hosting the headquarters and its personnel, and a Sending State in regards to the military personnel it assigns to the Headquarters. While the privileges and immunities for Receiving State nationals may be of limited significance, it is an important recognition to treat all staff members similarly and it does grant military staff members equal access to participate in Headquarters activities also when such activities operate under the fiscal exemptions granted to an Allied headquarters. The status was caveated only by the Benelux countries, who have ratified the Paris Protocol245 and the NATO SOFA,246 as well as the Ottawa Agreement,247 with a reservation to limit the application of potential fiscal privileges to their military personnel even when attached to an Allied headquarters in any Benelux country,248 while France, as the first State hosting Allied headquarters, implemented the Paris Protocol provisions to provide certain fiscal entitlement to French nationals. This practice, consistent with the wording of the Paris Protocol, Arts. 3 and 8, has been confirmed not only in the subsequent Supplementary Agreements but also in national courts.249
(ii) ‘Attached to’
In the definition of both ‘force’ and ‘civilian component’ the word ‘attached’ appears in the English version; in the French version, the term used is ‘affecté’, which translates to ‘assigned’. Interestingly, the daily NATO verbiage is to assign members to posts and thereby attach them to an Allied Headquarters. The matter is somewhat academic because to be attached to an Allied Headquarters the Sending State is expected to issue an order or a similar decision to facilitate and document the assignment to a designated post. The Paris Protocol does not require that the attachment has a certain duration, and all attachments are, regardless of the duration, temporary.
(iii) Civilian component
Art. 3, para. b. defines ‘civilian component’ in the context of the Paris Protocol. The first part of the definition corresponds to the definition in NATO SOFA, Art. I of ‘members References(p. 510) of a civilian component’, extends status to such members when attached to an Allied Headquarters, and by the same token excludes Receiving State civilians from the definition. While it was readily accepted that Receiving State military members would be included in the military staff of an Allied Headquarters, this was subject to much discussion regarding the civilian members. The divergences in status appear to be a consequence of perception and more specifically of the drafting of the definition of a civilian component in the NATO SOFA. The definition of ‘civilian component’ in NATO SOFA, Art. I, para. 1(b) was a new feature when it was brought into the draft in 1951, and the significance of embedding civilians was considered thoroughly and not without some resistance. Consequently, the definition is reserved to civilians who (a) are employed by an armed service of a Party to the NATO SOFA; and (b) fulfil the nationality requirements set out in the article.
The second part of the definition extends status to NATO International Civilians employed by an Allied Headquarters ‘in such categories […] as the North Atlantic Council shall decide’. The definition was not envisaged in the first French draft, but SHAPE pointed out the unbalance of the status provided with regard to civilians employed by Allied Headquarters and those employed by the International Staff under the Ottawa Agreement.250 And just as the first part of the definition also NATO international civilians holding Receiving State nationality or having been resident in the Receiving State upon recruitment are excluded from the definition of a civilian component. A US draft amendment to the definition was adopted with the comment that ‘… such a distinction was inevitable since the original Agreement on the Status of Forces also limited the definition of “civilian component” ’.251 Hereby Receiving State civilians, attached or employed, were excluded from the definition without further reflection, except for the exemption from taxation in Art. 7. The subsequent discussion on the taxation of salaries paid to NATO international civilians may be a testament to the early development of international civil service. The draft of Art. 9 (later to become Art. 7) which exempts NATO international civilians from paying taxes on their salary and emoluments in any nation signatory to the Protocol was accepted by more of the drafters mainly (or only) because further discussion would have delayed the conclusion, and some (yet a minority) of the drafters were reluctant to give up the right of a state to tax its own citizens.252 The drafting of Art. 7, para. 2, along with two other Articles, did in fact end up delaying the approval of the draft Protocol.
Although the definition in the Protocol preconditions status on the creation of categories of international civilians253 it is important to identify that the Paris Protocol does not define the personnel category of NATO International Civilians; the criteria for employment as a NATO International Civilian are set out in the NATO Civilian Personnel Regulations, and these expand on the nationality criteria established in the Paris Protocol for the purpose of being considered a member of the civilian component in the context of the Paris Protocol. Rather, the Paris Protocol defines who, within the category of NATO International Civilians, are considered to be forming part of the ‘civilian component’ of an Allied Headquarters and thereby enjoying the status afforded to such members under References(p. 511) the NATO SOFA through the Paris Protocol. There is one provision in the Paris Protocol which provides status specifically to NATO International Civilians and beyond the application of the NATO SOFA and the definition in Art. 3 of the Protocol, and that is Art. 7, para. 2, granting exemption from taxes on salaries and emoluments paid to NATO International Civilians ‘by Allied Headquarters in their capacity as such employees’ and discussed in more detail below. This exemption is not unique to NATO but follows the general rule in international civil service and is not only founded in concerns over international budgets and how budgets are allocated back to nations through taxation. International civil servants are exempted from tax on payments made to them by an international organization ensure parity for all officials, no matter their nationality or country of residence.254 Consequently, more of the Supplementary Agreements address this matter and extends the definition of ‘civilian component’ to include Receiving State nationals with a status comparable to that enjoyed by the Receiving State military members attached to the headquarters.
Art. 7, para. 2, is not the only provision in the Protocol, which includes all international civilians in the application of its application: the claims provisions in Art. 6, paras. 2.b and 3 both (implicitly or by design) includes claims refers to ‘any other employee[s] of an Allied Headquarters’ and as such, no matter if the employee is a Receiving State citizen or was ordinarily residing in the Receiving State when employed as a NATO International Civilian.
(iv) Local civilian employees
An Allied Headquarters has the option to recruit and employ a local civilian workforce in the Receiving State. This is accommodated in the NATO SOFA, Art. IX, para. 4, which is extended to an Allied Headquarters by explicit reference in the Paris Protocol, Art. 3, para. 2. While this authorizes the Allied Headquarters to become an employer in the Receiving State, employment would equally have to be authorized internally through budgets and juridical capacity to conclude employment contracts. Local civilian employees are not in a staff category defined in the NATO SOFA or the Paris Protocol, and such personnel do not form part of the civilian component of an Allied Headquarters or a Sending State. The employment relations are subject to Receiving State (labour) laws and the salaries paid to locally employed civilian staff are not exempt from income tax, and as the employer the Allied Headquarters must comply with Receiving State regulations such as performing deductions and payments of taxes and social contributions. Moreover, disputes related to the employment is subject to Receiving State domestic jurisdiction, although it may fall on the Receiving State to represent the Allied Headquarters in such disputes when the second sentence in the Protocol, Art. 11, para. 1 (‘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’) has been implemented in a supplementary agreement or otherwise in arrangements between the Receiving State and the responsible Supreme Headquarters.
Contractors are not employed by an Allied Headquarters nor are they a staff category, but contractors and contractor employees have been distinct features in Allied Headquarters. Contractors come in different categories, from the self-employed or small specialized businesses providing technical and expert services to larger companies providing either technical expertise in the various fields covered by an Allied Headquarters, or contractors providing for example maintenance and janitorial services. The Paris Protocol and the NATO SOFA are both silent on contractors and contractor employees, and a random search in the Travaux Préparatoires suggests that the issue of contactors and their employees was not subject to much debate during the drafting of the NATO SOFA or the Paris Protocol. The records on the Paris Protocol, Art. 3, are silent but a cross-check in the summaries on NATO SOFA, Art. I, para. 1(b) shows that it was in fact discussed which categories of personnel would be regarded as a member of a civilian component as defined in the NATO SOFA, and it appears that the drafting parties had no desire to expand the definition of the civilian component in this regard. Since the US already embedded more contactors and support categories in their civilian personnel255 the intention of the US to seek bilateral agreements with other NATO States to provide status to other categories of personnel than civilians employed by the force was stated early on.
Supplementary agreements have over time addressed the requirement for contracting and, more recently, including contractors and contractor employees in some form and defining a limited scope for status. The provisions of the supplementary agreements seek to support Allied Headquarters in attracting bids from and award contracts to companies holding the appropriate technical or academic knowledge and credentials and thus ensure that the contracted expertise sufficiently support the Headquarters’ mission. Accordingly, status is reserved to ‘contractor employees, who are technical experts, specialists, or consultants’. Since NATO’s mission is international in nature the companies with which NATO concludes contracts are not necessarily located in the Receiving State. To create a fair competition, equal terms, and to appropriate possible costs of a contract, status for contractors and their employees becomes a significant issue. It is important to emphasize that contractor employees do not become embedded in the civilian component and the status so afforded is vested entirely in the Allied Headquarters and not in (any) individual. Nor does the Allied Headquarters subsume responsibilities for contractors as it does for attached or employed personnel under the Protocol.
The Supplementary Agreements are not the only agreements in which NATO Member States seek status for contractors. There are bilateral supplementary agreements to the NATO SOFA providing status of contractors engaged by Sending States.256 Also Allied Joint Publication, AJP-4.5(B), and the subsequent Standing Host Nation Support Agreements identify contractors as part of the ‘force’, whereas the definition of a member of a civilian component appears to remain within the ambit of the NATO SOFA and Paris Protocol, although the status obtained under the Standing Host Nation Support Agreement extends to the ‘Force’, and thus to members of the civilian component and contractors.257
References(p. 513) (b) Status granted to members of an Allied Headquarters staff in the Paris Protocol
In dealing particularly with its international staff, the hybrid nature of the Paris Protocol becomes very evident as the nexus between purpose and functions and corresponding privileges and immunities is not articulated as expressly in the case of NATO status agreements since the status agreements do not have a provision similar to that found in Art. 105 of the United Nations Charter or in the Ottawa Agreement.
(i) Specific status granted to staff members in the Paris Protocol
While immunities of the officials of an international organization from taxation and jurisdiction appears to be the norm,258 the Paris Protocol does not direct the exercise (or immunity from) criminal jurisdiction over staff members. Although this may expose the NATO International Civilians to a different degree of Receiving State jurisdiction, this is partly a logical consequence of the majority of military staff members being attached to an Allied Headquarters by NATO Member States and the Allied Headquarters’ authority is limited by not being the employer but the receiver of assigned staff and all issues related to the employment (to include terms of employment, terms of assignment, and disciplinary authority) remains a Sending State responsibility. For matters related to local jurisdiction over these staff members, the Paris Protocol (Art. 4, a) relies on the jurisdictional provisions set out in the NATO SOFA, Art. VII. While the Sending (or Receiving) State may have exclusive or concurrent criminal jurisdiction, this does not amount to traditional immunity, although it is important to remember that immunity does not equate to impunity and as such, also international staff members can be held accountable for their actions, either by way of waiving immunity or through internal disciplinary actions.
The Supplementary Agreements entertain administrative and fiscal privileges, as well as immunity from legal process for flag and general officers (and their civilian equivalent), as discussed below. In comparison, this immunity under the Ottawa Agreement applies to all officials, regardless of nationality or place of recruitment. Arguable, this inconsistency has not caused any grievance and the Ottawa Agreement, Art. 21, offers a remedy for experts employed in NATO missions (other than the members of International Staff) to be afforded immunities. Similarly, and following the same principle of independence, status-of-mission agreements traditionally seek to attain full immunity for all staff members from Receiving State jurisdiction.
(ii) Status of flag and general officers
A matter of particular concern to some of the States participating in the drafting was the lack of immunities of flag and general officers. It was discussed within the Working Group with reference to the Ottawa Agreement and its functional immunities.259 However, the drafters of the Paris Protocol could not reach consensus on a textual proposal as some Governments at the time could not support a clause, which accorded (additional) immunities and privileges to a ‘new class of personnel’ (supreme commander, References(p. 514) commanders-in-chief, commanders directly subordinated to supreme commanders). Prior to the submission of the final report on the Paris Protocol one nation, the US, repeated the need to include a specific status for military commanders in the text by stating that ‘his Government accepted with regret the deletion from the [Paris] Protocol of the provision for the granting of certain additional privileges and immunities to certain senior officers of Allied headquarters’.260 The US wished to have recorded the point of view that there is a practical analogue between the needs of the highest allied commanders and those needs that are recognized by the Ottawa Agreement. The final report of Chairman of Working Group summarized the discussions in the following manner: ‘This [according of diplomatic immunities and privileges to the supreme commanders, the commanders-in-chief, and the commanders directly subordinate to the supreme commanders] presented difficulties for certain Governments, and the Working Group agreed to leave this question to national arrangements.’261 The compromise reached at the time was that a clause on the according of diplomatic immunities to military commanders should be included in the Supplementary Agreements to be concluded between the Supreme Headquarters and the Receiving State. The compromise has been implemented in all supplementary agreements but one. Additionally, the diplomatic immunities originally accorded by France to General Eisenhower in his personal capacity and his function as SACEUR are continued in the SHAPE-Belgium Agreement and are extended to the Chairman of the Military Committee, with the exemption that if the Chairman is a Belgian citizen, the immunities will be limited.
(iii) Exemption from passport and immigration control and the principle of non-residence
Pursuant to the NATO SOFA Art. III, and the Protocol Arts. 2 and 4, military staff members are exempt from visa and immigration control and are excluded from attaining any rights to permanent domicile or residence whereas civilian staff members and dependents are required to carry passports and comply with visa requirements. The drafters of the NATO SOFA refrained from extending this privilege to civilians and to dependents. It was discussed but the majority of drafting nations did not support the approach to provide exemptions in the NATO SOFA due to security considerations, however expressing that ‘it was the hope of the Working Group that certain administrative measures might be taken to reduce formalities to a minimum once entry had been affected’.262 Consequently, military staff members may enter and for the period of their assignment in the Receiving State reside in that State without presenting a passport or having to conform with visa and immigration regulations; the only requirement is that they present a travel order in a format that conforms to Art. III of the NATO SOFA and present a valid ID (Art. 4, para. c); while the travel order may be issued by the Allied Headquarters it has to be presented References(p. 515) together with an ID card issued by the Sending State and not an ID card issued by the Allied Headquarters.
In the broader context, an international organization must be able to recruit and employ personnel who are nationals of any of the Member States. The Receiving State has a responsibility to facilitate the employment process, and not impose unnecessary obstacles, such as the requirement that personnel obtain regular residency status.263 Conversely, international staff members do not obtain rights associated with residence. This is because privileges and immunities are not granted to personnel for their personnel benefit, but only ‘for the purpose of exercising their function in relation to the organization’.264 For the military members of a visiting force (and by extension in the Protocol, military members of an Allied Headquarters) this principle is clearly identified in the NATO SOFA, Art. III, which on request of the US, included that members of the force ‘shall also be exempt from the regulations of the receiving State on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of the receiving State’.265 However, both the NATO SOFA and the Paris Protocol are lacking a similar statement that civilian members and dependents are not acquiring (permanent) residency, and this is instead included in supplementary agreements, consistent with the practice in other seat or headquarters agreements such as the ICC Headquarters Agreement.266 The ICC Headquarters Agreement repeats that officials of the international organization are not considered to have residency status for tax purposes.267 This provision represents a consistent trend in other agreements as seat or headquarters agreements consistently waive immigration requirements and identify that periods of stay by international staff members in the Receiving State are not to be considered as domicile or residence for taxation purposes. The status may change by individual choice as staff members may choose to become a permanent resident of the hosting State, subject to Receiving State immigration laws, but that is not a function of the assignment to or employment with the international organization. Dependents may become residents for tax purposes if they are permitted and decide to engage in gainful employment in the Receiving State.
This approach is equally supported by State practice. One example specific to the NATO SOFA and the Paris Protocol is the interpretation of Art. X of the NATO SOFA by the Supreme Court of the Netherlands. On 6 June 2008, the Supreme Court issued four judgments on the question of whether municipal tax exemptions could be based on Art. X, para. 1 of the NATO SOFA.268 In these cases, whether or not a civilian employee (or their dependent) was considered a Dutch resident proved to be decisive. The Supreme Court held that, as of 1 January 2001, ‘for the granting of status by the Ministry of Foreign References(p. 516) Affairs for new applications for administrative technical and service personnel, as well as private individual the duration of residence in The Netherlands before entering into service is no longer decisive’.269 Instead, the determining factor is whether the individual ‘has been sent by the sending State or has been recruited locally’.270 The Court further held that in the case of doubts as to whether or not a person has permanent residence in the Netherlands, the Ministry of Foreign Affairs could be consulted.
Although a clear, independent definition of ‘residence’ is yet to form in international law271 there appears to be a general consensus on a ‘fundamental test’ that prevents an individual from acquiring residency status, namely that he or she would not be in the Receiving State ‘but for’ the requirements of the Sending State or the international organization.272 This is again consistent with the principles identified above. This test is applied in EU law, in particular the EU SOFA [not yet in force], Protocol on the Privileges and Immunities of the EU, EU Regulations and Directives, and case law of the Court of Justice of the European Union (CJEU). The CJEU has explained the concept of ‘normal’ or ‘habitual’ residence in several cases. This serves to illustrate that officials of an international organization, by definition, do not meet the requirements of normal residence, because they are in the Receiving State solely as a function of being in the service of or employed by an international organization. Consequently, they should not be taxed on tax-exempt income in the Host State based on residence.
(iv) Recognition of driver’s licences issued by the Sending State
According to NATO SOFA Art. IV, and the Protocol, Arts. 2 and 4, the Receiving State shall accept the driving licence of military and civilian staff members. If so required by Receiving State regulations, the Receiving State may issue a separate driving licence, however the NATO SOFA does not prescribe for the staff members to exchange their national driving licences for a Receiving State licence. Accordingly, it is upon the Receiving State to identify, if an additional licence is required to certify the legitimacy and recognition of the licence held by the staff member. Most Supplementary Agreements request the Receiving State to extend this recognition to both dependents and to contractors and their dependents and practice shows that this is a functional area addressed in seat and headquarters agreements and as such it is not unique to the NATO SOFA or the Paris Protocol.273 If staff members or dependents wish to take a driving test while in the Receiving State, then they are required to comply with all relevant requirements in force in that State.
References(p. 517) Some States, however, only recognize foreign driver’s licences for a limited period of time and only until the time when the Receiving State considers itself to have become the place of ‘normal residence’.274 This sometimes becomes a Receiving State argument for either exchanging driver’s licences or for not being able to recognize licences held by for example dependents. It is explained above why staff members of an Allied Headquarters and their dependents are not considered taking up ‘normal residence’ in the Receiving State no matter the length of their posting or employment, but the more efficient approach is to embed the recognition in a supplementary agreement to avoid misunderstandings.
Staff members attached to an international organization, by international employment or assignment by Member States, all hold international posts and perform international functions. Whereas status often is thought of as immunity from legal processes, functional status also extends to fiscal entitlements. Just as is the case with immunities from legal processes, fiscal entitlements should be extended to all international staff members in order to maintain an equal footing and evenly reflect on the international character of the service assignments, where possible. While the international staff members assigned or hired from outside the host country often are granted additional privileges, the obligation to remain impartial and loyal to the organization applies to the entire staff and functional status across an international staff is ‘the corresponding obligation of all members to respect this international character’.275 The relationship between an international organization, its international staff, and the requirement for an organization to provide functional legal protection of its staff was commented on by the International Court of Justice in the Reparation case, which in respect of the United Nations concluded that ‘[u]pon examination of the character of the functions entrusted to the organisation and the nature of the missions of its agents, it becomes clear that the capacity of the Organisation to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter.’276 The protection, being functional in purpose and nature, is not reserved to international civil servants but extends to all agents. However, the civil servants as the category answerable only to the organization in matters of employment (and thus status) are more vulnerable to pressure by a government and to alleged contraventions of particularly the principles of independence and loyalty.277
In addition to exempting the institutional income of NATO International Civilians from taxation and directing the taxation of the income of staff members assigned by Member States, the Paris Protocol also grants fiscal privileges allowing staff members to access duty and tax-free goods and supplies, import their personal effects and furniture, References(p. 518) and import private motor vehicles. Not all the entitlements are extended to the entire staff and the privileges are not unlimited, as illustrated below, but equally embedded in these provisions is the notion that fiscal privileges granted by, or subsequent to, the NATO SOFA are subject to Receiving State law, and as such are not absolute. Privileges granted to members of the force or civilian component are provided as a part of the status they enjoy under the Paris Protocol and typically a supplementary agreement, and are granted and vested in in the interest of an Allied headquarters. The status is negotiated and agreed to by the Receiving State and the Supreme Headquarters, and the status attaches to the Headquarters; it is not accorded to the individual, and the administration remains with the Headquarters. Consequently, an Allied headquarters may revoke privileges, since the same headquarters and the States attaching its personnel to an Allied headquarters are obliged to cooperate and assist local customs and fiscal authorities with preventing abuse, and conduct enquiries into possible offenses (Paris Protocol, Art. 4, subpara. b, which directs that the NATO SOFA, Art. XIII,278 ‘shall attach both to the Allied Headquarters and to any State to whose armed service the member belongs, or, in the case of members of a civilian component and their dependents, the State, if any, by whose armed services the member is employed’). An Allied headquarters, being the holder of the privileges, has the right and the obligation to regulate and administer the application of privileges, and thereby employ good stewardship. This includes establishing control mechanisms to prevent abuse, investigating suspicions of abuse, and revoking or suspending privileges partly or in full in case of abuse.279
Art. 7 of the Paris Protocol directs the taxation of income for staff members. Para. 1 extends the exemption from tax on moveable property and on income generated by staff members, military and civilians, assigned by a Sending State and therefore in the employ of and receiving salaries and other enumerations from that State. This paragraph is discussed in Chapter 25 and will not be examined here.
Regardless of nationality, Art. 7, para. 2, exempts NATO International Civilians from taxation on ‘the salaries and emoluments paid to them by the Allied Headquarters in their capacity as such employees’. The Paris Protocol is very clear in its exemption; it does however not provide any reflection on what may be included in ‘income and emoluments’, or on the relations between the individual and the tax authorities in either the State hosting the employing Headquarters or the State of which the employee is a national. This may give rise to questions particularly in two areas: if international income is to be reported and if it is a ‘deductible’ in terms of the total income of a household.
In the broader context, it is noted that international organizations have no territory and do not confer nationality, and therefore cannot exercise jurisdiction; at the same time, References(p. 519) the international civil servants are not left open to taxation or tax jurisdiction based on their nationality or territoriality as this would lead to inequality in remunerations and hamper the functionality of international organizations and the recruitment of staff and—again—the independence of the staff. The national tax jurisdiction of the Receiving State is limited, but not excluded in terms of tax-exempt income and emoluments paid to international civilians and ‘… absent a rule of general or particular international law that removes the institutional income of international civilians from the domestic jurisdiction and hence from the national legislative fiscal jurisdiction, the principles of international taxation derived from personal and territorial sovereignty apply … ’.280
The tax exemption for NATO International Civilians is stated clearly in multiple places: The Ottawa Agreement, the Paris Protocol, and in the NATO Civilian Personnel Regulation. However, in reading the Travaux it appears that the drafters did not reflect on what may constitute ‘income and emoluments’. What the drafters discussed was if the income of NATO International Civilians employed by an Allied Headquarters was to be tax exempt consistent with the Ottawa Agreement and how that would be accomplished, if all NATO International Civilians should be deferred to the Ottawa Agreement or if provisions were to be included in the Paris Protocol. This was not easily resolved and caused a delay in finalizing the Protocol, but the result was Art. 7, para. 2.
In terms of what the exemption provides, Art. 7, para. 2, does not identify or itemize the terms of exemption. The discussions in the Travaux on the Ottawa Agreement, Art. 19, and on the Paris Protocol do not help to shed light on this. The general conclusion must be that income and emoluments are proceeds paid by the Organization to the international civilians in their capacity as such, or using a different term: their institutional income.281 Similarly, staff members may be taxed on other assets (e.g. house ownership taxes, tax on interest) and on additional income received outside their employment. The latter is an uncommon scenario as most international organizations, to include NATO, preclude their staff from accepting outside employment to preserve their allegiance to the organization.
The second part of para. 2 in Art. 7 is interesting and is part of the narrative of the Paris Protocol. The background and application is detailed in the first edition of this Handbook by Mr. Max Johnson, and suffice to identify that the 1983 Tax Reimbursement Agreement between the Secretary General of NATO and the US Ambassador to NATO282 remains in force and that this is not unique to NATO and US relations, as the US has concluded similar agreements with other international organizations.283
References(p. 520) The effect of the tax exemption is a practical aspect of Art. 7, and particularly if there is an obligation to report income and file taxes and if the income is to be included when the total income of the household is rated for taxation purposes. The Paris Protocol is silent in this regard, and while no cases involving the Paris Protocol are known to the authors, case law does exist and is thoroughly commented on in Rutsel Silvestre J. Martha.284 The case of Humblet v. Belgium285 is one of the leading cases and specifically in terms of EC/EU law. It concludes that the income received by an international civilian in this capacity (in this case employed by the EC/EU) is exempt also from the municipal tax authorities’ control. Or, to state it differently, that the exemption from taxation of international civilians’ institutional income constituted an unreserved tax exemption. The Humblet Case served as a model for the UN Legal Counsel, identifying that the income tax exemption defined in the 1946 Convention on UN Privileges and Immunities is absolute and includes exemption from requirements to file taxes.286 While it relates to treaties different from the Paris Protocol, the exemption from taxation on income and emoluments (institutional income; pensions is a separate issue) paid to an international civilian by the employing organization, generally appears to extend to: a) exemption from income tax (direct and indirect), b) exemption from reporting requirements (unless the staff member receives income not related to the employment with the international organization), and c) exemption from being taken into account when tax on additional earnings is calculated (including earnings of the household—as established in Humblet v. Belgium). However, the interpretation of tax exemptions for international civil servants depends entirely on the agreed language in the relevant treaties. Moreover, if the relevant seat or host agreement allows progressive tax—and according to Rutsel Silvestre J. Martha those agreements do exist, just as some States have made reservation to international agreements to that effect, then it is a different scenario all together. Where such a reserved tax exemption exists, it may be assumed (depending on the language) that the individual would be required to report or declare income received from an international organization. Secondly, if the tax exemption is based on a reimbursement system, the individual is equally required to comply with reporting requirements and the international organization would be obligated to coordinate information with the relevant member State authorities to support reimbursement and ensure equality for staff member pay. Finally, the country of origin may have a requirement for filing income taxes to ensure that the member is complying with national regulations.
Art. 8, para. 2, of the Protocol may be a short statement but the effect is significant. As discussed elsewhere in this chapter, Art. 8, para. 2 authorizes an Allied Headquarters to operate canteens, messes, and cafeterias. Since the goods and supplies provided in such facilities are duty and tax-free, access is limited to those enjoying duty and tax-free entitlements. The NATO SOFA, Art. XI, para. 4, directs that goods and supplies ‘are for the exclusive use of the force and, in cases where such use is permitted by the receiving State, its civilian component and dependents’. For the purposes of applying the NATO SOFA, References(p. 521) Art. XI, para. 4, it has to be read in the context of the Protocol’s definition of a ‘force’ and of a ‘civilian component’ in Art. 3, para. 1.a., and then compared with the Protocol, Art. 8, para. 3. As already described, military members assigned by the Receiving State to an Allied Headquarters are by design included in the definition of a ‘force’ whereas explicitly excluded from the definition in the NATO SOFA. Art. XI, para. 4, is applied without restrictions to the ‘force’ of an Allied Headquarters, unlike the NATO SOFA, Art. XI, para. 5 and 6, which are specifically earmarked for non-Receiving State members of the force in Art. 8, para. 3 of the Protocol. As such, not excluding Receiving State members of the force from enjoying privileges under Art. XI, para. 4, of the NATO SOFA appears to be a deliberate decision. In comparison, Receiving State civilians are excluded from the definition of ‘civilian component’, both when attached by the Receiving State or employed by an Allied Headquarters as NATO International Civilians. Accordingly, even if a Receiving State permits ‘members of the civilian component’ to the use canteens, cafeterias, and messes, this would not in itself extend the privilege to Receiving State civilians assigned to or in the employ of an Allied Headquarters.287
Further access to canteens, cafeterias, and messes for members of the civilian component, dependents and Receiving State civilian staff members is typically addressed in supplementary agreements. Additionally, supplementary agreements concluded in the past years request what is generally referred to as ‘on premise consumption’ which authorises the Allied Headquarters to allow guests of the Headquarters, who are not otherwise entitled to fiscal privileges to dine or purchase minor items such as event memorabilia without taxes in the Headquarters’ cafeteria or mess. This does not include access to canteens; access to canteens and tax-free fuel are part of the limited privileges Receiving State nationals only enjoy when employed or assigned to an international function on the Headquarters’ staff.
Another common provision to be observed is the NATO SOFA, Art. XI, paras. 8 and 9, which directs disposal, export and re-export of items imported free of duty or purchased in the Receiving State. This provision is commented on in Chapter 25 and it is only noted here that if the Receiving State law so permits the imported effects may be disposed of in that State but only in accordance with its laws (para. 8; i.e. consistent with the applicable procedures for removing goods from duty-exemption regimes for example by paying tax and duties). Similarly, goods procured in the Receiving State by staff members can be exported in accordance with the laws of the Receiving State (para. 9). The supplementary agreements regularly extend this by permitting disposal between entitled persons, donations to (eligible) charitable organizations, and directing procedures for scrapping of vehicles or otherwise manage loss of vehicles. The supplementary agreements also reinforce that goods and provisions purchased tax-free in Allied Headquarters’ canteens (or locally in the Receiving State, if so allowed under a supplementary agreement) are for personal use only, unless low value gifts have been permitted in the supplementary agreement.
The Paris Protocol, Art. 8, para. 2, extends the NATO SOFA, Art. XI, para. 5, to Allied Headquarters staff member, but Art. 8, para. 3, details that this extension ‘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’.
As such, Allied Headquarters non-Host State staff members are permitted to import, free of duties, their household goods upon their first arrival or the first arrival of their dependents in the Receiving State. This is an exemption from taxes and duties, but not from customs declaration and inspection.
The application of this privilege typically advance questions related to the terms ‘first arrival’ and ‘personal effects and furniture’ often elaborated on in supplementary agreements and discussed in more detail here:
a. ‘First arrival’ is usually understood to mean within the first six months of the staff member taking up service or in the course of the arrival of the staff member’s dependent, but differences occur as to how Receiving States understand the term, and the period during which shipments can be made under this provision is typically agreed in more detail in a supplementary agreement and may include replacement or follow-on shipments.
b. ‘Personal effects and furniture’ was one of the terms discussed in the course of the drafting of the NATO SOFA. It appears that import of household effects initially was included in the import of the force in the draft presented by the US288 but in the subsequent draft published in the Travaux a separate paragraph was included in what was to become Art. XI, para. 5.289 The paragraph was rephrased several times over a short period in February 1951, and while the records of the discussions are rather briefly summarized, it is noticeable that a reservation, which specified that import of new furniture was allowed only temporarily and for the time of the service290 was later deleted, possibly because the import of all household effects is considered to be temporary, regardless if the household goods are new or used. Later in the process, in April 1951, France requested the Chairman of the Working Group on Status to consider a redraft for the paragraph to exclude new household goods and limit the entitlement to articles already in use, but the proposal was not adopted.291 The only change in the following draft was a Canadian proposal submitted on 3 April 1951292 recommending allowing also import on the arrival of dependents. Consequently, it is not required that the household goods already are used or in use, but Receiving State limitations on disposal must be observed consistently with both the language of the paragraph itself (‘for the term of such service’) and Art. XI, para. 8 (disposal and re-export). Another sentence allowing additional shipments at any time of the posting was also removed early in the process.293
References(p. 523) It is unclear if a single definition of the expression ‘personal effects’ exists in this regard, whereas there may be a more conform or common understanding of what is included in the term ‘furniture’. Rather, ‘personal effects’ could cover a broader range of items, of which not all are durable as they may wear out, and generally perishable items (food, beverages) would not be deferred to in the understanding of ‘personal effects’ or ‘non-durable’ items. Rather than seeking to define the terms, it is suggested that, consistent with Art. XIII it is left to the discretion of national regulations (Sending and Receiving States) to identify, if items are to be declared, registered, or are restricted in quantity or excluded otherwise from the duty exemption or even from importation (or from re-export or export). Apart from perishable items, this may predictably affect the import, re-export, and export of items such as personal weapons, antiques and similar items. Import of wine and spirits as part of the personal effects is a reoccurring question, and the answer is that there may be exemptions granted by the Receiving State either as a matter of national regulations, bilateral agreements, or other regulations such as the EU customs regulations.294
The Paris Protocol, Art. 8, para. 2, also facilitates the application of the NATO SOFA, Art. 6, to the international staff serving at an Allied Headquarters. Again, the Protocol, Art. 8, para. 3, specifies that this extension ‘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’. This privilege was included in the drafts from the outset and there is no limitation in the paragraph itself on the period during which the import has to occur or the number of private vehicles that may be imported. This is, however, not to suggest that the import of private vehicles is not regulated or does not give rise to questions. Nor does the exemption from duties on import translate into an obligation for the Receiving State to exempt private vehicles from road taxes or tolls, but staff members enjoying exemptions from taxation under Art. X of the NATO SOFA as extended by the Protocol, Art. 7, are equally exempt from property tax on their private vehicles.
One of the primary questions is that of ownership and use. The duty-free import is valid only for private vehicles by the eligible staff member, and the vehicle has to be ‘their’ private motor vehicle’. As such, it cannot be a vehicle on loan or rented, but it can be debated if full ownership is a condition or if this could apply to leased vehicles. Moreover, it does not apply to vehicles owned by dependents, but the dependents are authorized to operate the vehicles so imported by the eligible staff member. By the same token, only the staff member and the dependents are allowed to use the vehicle and further use (be it to other members of the household, visiting family, or local friends) is not permitted. These restrictions apply equally if the Receiving State has facilitated duty and (p. 524) tax-free purchases of vehicles within the Receiving State, which is typical under supplementary agreements.
There is no limitation on the number of vehicles that can be imported; however, the imported vehicles are for the personal use of the entitled staff member and his or her dependents. And, the staff member would, if so requested, have to document that this is for personal use and there is a limit to how many vehicles an entitled staff member would need for ‘personal use’, even if the entitled member owns and only utilizes the vehicles personally. This does not in itself exclude further purchase or importation, but it would have to occur outside the tax and duty exemptions granted in the Paris Protocol or in a supplementary agreement. Repeating prior arguments, all entitlements or privileges are granted in support of the functions of the force or Allied Headquarters and not to enable an individual passion or a hobby. Equally embedded in the provisions in the NATO SOFA, and repeated by reference in the Paris Protocol, is the notion that fiscal privileges granted by or subsequent to the NATO SOFA or the Protocol are subject to coordination with the Receiving State, and is as such limited and it always remains subject to the Allied Headquarters’ control, supervision, and stewardship vis-à-vis the Receiving State.295
This Chapter seeks to give a detailed account of the legal framework applicable to the international military headquarters and organizations established pursuant to the NAT.
The NATO status agreements have effectively supported and promoted the institutionalization of NATO since 1951 and 1952, and this while there have been no attempts to change these agreements. Serge Lazareff concludes that the NATO SOFA is an imperfect document, yet it is so in order to balance the interests of Sending and Receiving States and, at the time of drafting, reconciling opposing concepts. Lazareff points out that ‘… the gravest error one could commit is to consider SOFA as a self-sufficient text. In fact, this Treaty, as most treaties, can only be judged through its practical and daily application and to that extent the Preamble authorizing the conclusion of separate agreements is of the utmost importance.’296 Arguably, Lazareff’s conclusion is equally applicable to the Paris Protocol.
The Paris Protocol, while being a Protocol to the NATO SOFA and thereby incorporating by reference most of the provisions of the NATO SOFA, is subject to international law as it applies to international organizations, and not international law as it applies to relations between Sovereigns. While this could be causing a discrepancy, the application of the NATO SOFA to an Allied Headquarters is accomplished through the Protocol itself, and additionally by the means of supplementary agreements. In 1953, SHAPE and France concluded the first supplementary agreement and today the Protocol is supplemented by several bilateral agreements. Although the NATO SOFA and Paris Protocol have remained unchanged since 1951 and 1952, those bilateral supplementary agreements have developed over time to effectively cater for the requirements of Allied Headquarters and to take due account of the dynamics of public international law in the domain of the law of international organizations and the international institutional law.
References(p. 525) The Paris Protocol does not exist in a vacuum. The implementation of this treaty is to be understood consistent with conventional and customary international law, and particularly that applying to international organizations. This understanding effectively enables Allied Headquarters to accomplish its functions and purposes, as directed by the NATO Member States in accordance with their constitutional structure, which includes the ‘rules of the organisation’, whose origin is the collective decisions adopted in the North Atlantic Council.
1 The authors of this chapter would like to acknowledge that the following is informed by the previous version of the chapter found in the first edition of this Handbook and authored by Max Johnson Jr. The chapter is the independent work of the authors, who have taken a different approach in organizing and presenting the topic, but also for the past 15 years both have been guided by the first edition of the chapter in their work.
3 See the first Terms of Reference for the North Atlantic Council: Final Communiqué of the first Session of the North Atlantic Council—(Terms of Reference and Organization), 17 September 1949, <http://www.nato.int/cps/en/natohq/official_texts_17117.htm?selectedLocale=en>: ‘The Council is the principal body in the North Atlantic Treaty Organization. In accordance with the Treaty, the Council is charged with the responsibility of considering all matters concerning the implementation of the provisions of the Treaty. Such subsidiary bodies as are set up under Article 9 of the Treaty are subordinate to the Council. The organization established under the North Atlantic Treaty should be operated with as much flexibility as possible and be subject to review from time to time. The establishment of this machinery does not preclude the use of other means for consultation and co-operation between any or all of the Parties on matters relating to the Treaty.’
4 This understanding is confirmed by the minutes from the discussions of the Ambassadors Committee negotiating the NAT: ‘The Council, as Article 9 specifically states, is established to “consider matters concerning the implementation of the treaty” and is empowered “to set up such subsidiary bodies as may be necessary”. This is a broad rather than specific definition of functions and is not intended to exclude the performance at appropriate levels in the organization of such planning and implementation of Arts. 3 and 5 or other functions as the parties may agree to be necessary’ as published in Tony Insall and Patrick Salmon (eds.), The Brussels and North Atlantic Treaties, 1947–1949, Documents on British Policy Overseas, Series I, Vol X, Whitehall History Publishing (Routledge, 2015), 435. Lawrence S. Kaplan, NATO 1948, The Birth of the Transatlantic Alliance (Rowan & Littlefield Publishers Inc, 2007), 242, identifies that ‘All subsequent offices, such as a secretary-general and supreme allied commanders, derived from the authority granted under Article 9.’
5 Lord Ismay, ‘The First Five Years’, (1955), Part 1, Chapter 2.
6 A. Muñoz-Mosquera, The North Atlantic Treaty Organization: An International Institutional Law Perspective First Part: The North Atlantic Treaty Organization from the United Nations Charter to a Dynamic Institutionalization (University of Leiden, 2018—dissertation pending), 99.
7 The term ‘Legal position’ is coined by Bekker based on the relevant work of El-Erian and others in the International Law Commission in P. H. F. Bekker, The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (Martinus Nijhoff Publishers, Dordrecht, 1994), 51. See El-Erian, in 1 Y.B. ILC  298, para. 110, UN Doc. A/CN.4/SER.A/1963. The same term, ‘Legal position’, is used by J. Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2009), 38.
8 This chapter does not discuss definitions or distinctions between the terms ‘immunities’ and ‘privileges’. A. Hammerskjōld, ‘Les immunités des personnes investies de functions internationals’, 56 RdC, 107 (1936 II), 137 identified ‘privileges’ with honour and prestige, and ‘immunities’ with guarantee. J. L. Kunz, ‘Privileges and Immunities of International Organizations’, 41 AJIL (1947), 828, stressed that ‘immunities are necessary for independent functioning, rather than ‘privileges’ which deal more with questions of honour, courtesy, and protocol. The present chapter is based on the understanding expressed by August Reinisch, International Organizations Before National Courts (Cambridge University Press, 2000), 13–17, describing ‘immunity as an exception from a state’s jurisdiction to adjudicate and/or jurisdiction to enforce, while a privilege can be viewed as an exemption from a state’s jurisdiction to prescribe’.
9 Muñoz-Mosquera, (n. 6) 19.
10 R. Monaco, Manuale de Diritto Internazionale Pubblico, seconda edizione (Torino: UTET, 1971), 641; A. Muñoz-Mosquera, (n. 6) 36.
13 Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty, done in Paris (28 August 1952), 340 UNTS 200 (Paris Protocol), <https://www.state.gov/documents/organization/85631.pdf>.
14 J. Snee, NATO Agreements on Status: Travaux Préparatoires, International Law Studies (Naval War College, 1961), 316 (C-R (52)14, Summary Record of a Meeting of the North Atlantic Council, 2 July 1952) and 323 (C-R(52) 18, Summary Record of a Meeting of the North Atlantic Council, 20 August 1952, draft resolution on the accession of Turkey and Greece to the NATO SOFA).
18 These treaties are the 1951 Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff (Ottawa Agreement); the 1951 Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces (NATO SOFA) and its 1952 Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty (Paris Protocol).
19 SHAPE had been provisionally set up and located in France in December 1950 but was not formally activated until 2 April 1951. SACLANT was established in 1952, prior to the conclusion of the Paris Protocol and both Supreme Headquarters reviewed and provided comments to the draft (as recorded and published by J. Snee, Travaux Préparatoires).
21 J. Snee, Travaux Préparatoires, 183, para. 24 (MS-R(51)16 (26 April 1951).
22 History of SHAPE, ‘1949–1952: Creating a Command Structure for NATO’, <http://www.shape.nato.int/page14612223>.
23 On 2 April 1951, General Eisenhower executed the Council’s sixth session mandate to create a ‘subsidiary body’, he did it and, representing the Council, he signed the activation of SHAPE. The Council only decided in February 1952 to appoint a Secretary General. See North Atlantic Treaty Organization, History of SHAPE. ‘1949–1952: Creating a Command Structure for NATO’, <https://www.aco.nato.int/page14612223>. See also North Atlantic Council ninth session, Final Communiqué Lisbon, 20-25 February 1952, <https://www.nato.int/docu/comm/49-95/c520225a.htm>. See also North Atlantic Treaty Organization, ‘Lisbon Reorganization’, <https://www.nato.int/archives/ismayrep/text.htm>.
24 D-D(51)300 (12 December 1951), found in Snee, (n. 21) 582.
26 Ismay, (n. 5) refers to civilian and military agencies, 28, 186, 196.
27 See the Lisbon Communiqué of the 9th NAC Ministerial (20–25 February 1952), <http://www.nato.int/docu/comm/49-95/c520225a.htm>.
28 Note France’s report of study on the application of the SOFA as tasked by the Council of Deputies, which resulted in confirming the possibility to refer to the Ottawa Agreement in order to supplement the NATO SOFA [and its Protocol] on questions not covered by it: ‘26. The object of the present Protocol is to apply to Allied Headquarters the Agreement of 19 June 1951 on the Status of Armed Forces. For the question not covered by that Agreement—and for those question only—it is possible to refer to the Agreement signed at Ottawa on 20 September 1951, concerning the status of NATO civilian agencies.’ See D-D (52) 2 ‘Protocol on the Status of Allied Headquarters—Report and Comments by France and SHAPE on the Draft Protocol and the Draft France-SHAPE Agreement (3 January 1952), para. 26, in Snee (n. 21), 596.
29 Such as in-theatre or field headquarters [not strictly NATO International Military Headquarters] that NATO leads or contributes to in the framework of peace support operations. The legal framework of a given operation, i.e., the UN Security Council resolutions and the specific status of forces and follow-on arrangements defines the status of these headquarters.
31 Belgium-NATO arrangement regarding the status of IMS personnel (1968) <https://diplomatie.belgium.be/sites/default/files/downloads/6g%20Akkoord%20BE-NAVO%20aangaande%20de%20rechtspositie%20van%20het%20IMS-personeel%201968.pdf>.
33 Further Additional Protocol to the Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces (19 December 1997).
34 ‘[La] [c]onvention générale sur les privilèges et immunités des Nations Unies approuvée par l’Assemblée générale le 13 février 1946, pour répondre aux exigences de l’article 105 de la Charte … [la] convention sur les privilèges et immunités des institutions spécialisées. Cette convention, de façon, inhabituelle, fut d’abord para l’Assemblée générale de l’ONU (21 novembre 1947) … ces deux conventions aient été á l’origine d’une pratique génératrice d’une sorte de droit commun (coutumier) des privilèges et immunités … il s’agit en effet, dans un cas comme dans l’autre, d’assurer à leurs bénéficiaires l’indépendance nécessaire á l’exercice de leurs fonctions.’ P. M. Dupuy, ‘Droit International Public’ (Paris: Librairie Dalloz, 2012), 225–6.
35 A more dynamic approach to ‘customary international law’ is introduced by Brian D. Lepard, Customary International Law—A New Theory with Practical Application (Washington, DC: ASIL International Studies, 2010). See also Summaries of the Work of the International Law Commission in <http://legal.un.org/ilc/summaries/1_13.shtml>. For an argument against, see M. Wood, ‘Do International Organizations Enjoy Immunity Under Customary International Law?’ 10-2, International Organizations Law Review (2014).
36 Convention on Privileges and Immunities of the United Nations (13 February 1946), 1 UNTS 15, <http://www.un.org/en/ethics/pdf/convention.pdf>.
38 See August Reinisch, ‘Convention on the Privileges and Immunities of the United Nations, Convention on the Privileges and Immunities of the Specialised Agencies’, in Audiovisual Library of International Law (2009), <www.un.org/law/avl>.
41 See A/CN.4/401, Third Report on relations between States and international organizations (second part of the topic), by Mr. Leonardo Díaz-González, Special Rapporteur, in Yearbook of the International Law Commission (ILC) (1986) Vol. II(1), paragraph 31, outlining the entitlements as follows: ‘I. Privileges and immunities of the organization, A. Non-fiscal privileges and immunities:[…], B. Financial and fiscal privileges:[…], II. Privileges and immunities of officials, A. Non-fiscal: (a) immunity in respect of official acts, (b) immunity from national service obligations, (c) immunity from immigration restrictions and registration of aliens, (d) diplomatic privileges and immunities of executives and other senior officials, (e) repatriation facilities in times of international crisis, B. Financial and fiscal, (a) exemption from taxation of salaries and emoluments, (b) exemption from customs duties, III. Privileges and immunities of experts on mission for, and of persons having official business with, the organization. […]’.
43 See discussion in C. F. Amerasinghe, ibid. 397–402.
48 See discussion in Shaw, (n. 46) 1320. ‘It is clearly the functional approach rather than any representational argument that forms the theoretical basis for the recognition of privileges and immunities with respect to international organisations.’ Already in its 1977 Preliminary Report of the Special Rapporteur, Mr. Abdullah El-Erian (29th session of the ILC (1977)), the ILC noted that both the literature and state practice recognized the functionality principle as customary law.
49 ‘Only [international organizations], which fulfil these conditions can claim the privileges and immunities which are usually given to international entities with legal personality, based on international public and customary law.’ Belgium’s General information note Host Nation Policy, section II, A, 2. https://diplomatie.belgium.be/en/services/interministerial_committee_for_host_nation_policy/general_information_note.
50 Snee, (n. 21) 616,
51 See D-D (52) 2 (3 January 1952), as quoted (n. 27).
52 See Snee, (n. 21) at 273–6 and 284–6 (tax-exemption, inviolability of archives, and documents).
53 The status of the PfP missions to NATO Headquarters and their staff is found in the 1994 Brussels Agreement. See (n 39).
54 An indication of this understanding is confirmed by Jenks who argues that ‘the North Atlantic Treaty Organization, of forms of international military command makes it necessary to mention such immunities as an element in international immunities’. C. W. Jenks International Immunities (New York: Oceana Publications, 1961), 102.
55 International Military Headquarters are registered in the list of international organization, see for example Belgium’s Ministry of Foreign Affairs list <https://diplomatie.belgium.be/sites/default/files/downloads/list-of-international-organisations-in-belgium.pdf>.
56 A. S. Muller, International Organization and Their Host States, Aspects of Their Legal Relationships (Martinus Nijhoff Publishers, Kluwer Law International, 1995), 150. See also Reinisch, (n. 8) 15.
57 A. S. Muller, ibid. 134.
58 The notes submitted by several of the other States participating in the PfP SOFA in response to the Russian Statement Accompanying the Instrument of Ratification comment on the requirement to interpret and implement the PfP SOFA in accordance with its subject and purpose, and not invoking internal law as a means of interpretation or to modify the scope of the SOFA or create new obligations not envisaged in the SOFA.
59 See Chapter 7; Andres Muñoz-Mosquera, ‘Respect versus Obey: When the Longstanding Debate Needs to Be Seen under the Receiving State’s International Law Obligations’, (2012) NATO Legal Gazette, issue 29.
60 NATO Topics: Relations with the European Union, <http://www.nato.int/cps/en/natohq/topics_49217.htm>. See also the European Union External Action Service, <https://eeas.europa.eu/headquarters/headquarters-homepage/28286/eu-nato-cooperation-factsheet_en>.
61 Based on the conclusions of the 1999 NATO Washington Summit and the European Council at Nice in 2000, SHAPE is designated as the location for the EU Operation Headquarters under the Berlin Plus arrangements (when an EU-led mission is carried out with recourse to NATO common assets and capabilities). The European Union Staff Group is the heart of the EU Operation Headquarters (OHQ) at SHAPE for the EU-led military Operation ALTHEA in Bosnia and Herzegovina. This Staff Group supports DSACEUR in his role as Operation Commander, who is to plan and direct the operation at the military strategic level of command. <https://www.consilium.europa.eu/uedocs/cms_data/docs/missionPress/files/100608%20Shape%20-%20EUFOR%20Althea%20OHQ%20-%20how%20it%20works.pdf>.
62 For a detailed discussion of EU regulations on residence and immigration and the Paris Protocol, see Mette Prassé Hartov and Andrés B. Muñoz-Mosquera, ‘A Matter of Practice under International Institutional Law: NATO International Military Headquarters and Exemption from Residency and Visa in EU Legal Order’, NATO Legal Gazette, issue 33 (2014).
64 Official Journal of the European Union, C 326/1(26.10.2012) PROTOCOL (No 7), On the Privileges and Immunities of the European Union. See e.g. Art. 11, chapeau and paragraph (b) providing exemptions from residence regulations: ‘whatever their nationality, officials and other servants of the Union shall […] together with their spouses and dependent members of their families, not be subject to immigration restrictions or to formalities for the registration of aliens’. For purposes of taxation of EU staff members, Art. 13 of the Protocol states that ‘officials and other servants of the Union who, solely by reason of the performance of their duties in the service of the Union, establish their residence in the territory of a Member State other than their State of domicile for tax purposes at the time of entering the service of the Union, shall be considered, both in the State of their actual residence and in the State of domicile for tax purposes, as having maintained their domicile in the latter State provided that it is a member of the Union’. The provision also applies to ‘a spouse, to the extent that the latter is not separately engaged in a gainful occupation, and to children dependent on and in the care of the persons referred to in this Article’. This illustrates how the EU recognizes the non-residency status of its own officials, in accordance with the principle of functionality.
65 One example is the Seat Agreement between the Republic of Malta and the European Asylum Support Office (EASO) established by the EU in 2010 (Regulation (EU) 439/2010), which was concluded between EASO and the Maltese Government on 24 May 2011.
67 For further analysis on effective multilateralism see Wouters, Bijlmakers, and Meuwissen ‘The EU as a Multilateral Security Actor after Lisbon: Constitutional and Institutional Aspects, Katholieke Universiteit Leuven Working Paper No. 80 (2012), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2020357>, 6.
69 The Court of Justice of the EU (CJEU) has explicitly acknowledged ‘the growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations’ (Bosphorus case 84/95, referring to Al-Adsani v. the United Kingdom [GC], no. 35763/97 and Waite and Kennedy v. Germany [GC], no. 26083/94, § 72, ECHR1999-I. In Case 181/73 Haegeman v. Belgium  ECR 449, the Court recognized international law as ‘an integral part of Community law’.
70 See e.g. EC Regulation No 539/2001 of 15 March 2001 (amended by Regulation 1211/2010) recognises the NATO SOFA, Art. III, as a special arrangement. This recognition is repeated in Annex VII of the Schengen Borders Code (Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)—Community rules for carrying out the border control of persons, covering both border checks and surveillance. (Consolidated version, not official, published 2006R0562-EN-05.04.2010-003.002-1), which specifically references the waiver of passport and visa provided in the NATO (PfP) SOFA for military members holding a valid travel order and national ID card.
71 Regulation (EU) No 1289/2013 of the European Parliament and of the Council of 15 December 2010 amending Council Regulation (EC) No 539/2001, listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. Official Journal L 347, 20/12/2013 P. 0074–0080. This is implemented in the 2006 Schengen Borders Code and subsequent Border Crossing Handbook. The 2006 Schengen Borders Code, Art. 2, para. 15, extends discretionary authority to the Member States to issue residence permits to third-country nationals. Member States are, by the same Article, required to notify the European Commission of the specimen of model cards so issued. The information is then published in the Official Journal of the European Union, C Series.
72 SHAPE v. Supreme Site Services GMBH, Supreme Fuels GMBH & Co KG, and Supreme Trading FZE. Case-list no. C/03/233218/KG ZA 17/139, 12 June 2017. Supreme Site Services GMBH, Supreme Fuels GMBH & Co KG, and Supreme Trading FZE v. SHAPE. Case no. 2000.217.388/01, 27 June 2017.
73 District Court of Maastricht, case-list no. C/03/233218/KG ZA 17/139, 12 June 2017, para. 4.10. See also ‘The Court of Appeal therefore presumes that said monies had a public use’ Court of Appeal of Hertogenbosch, case no. 2000.217.388/01, 27 June 2017, para. 312.
74 D-D(51)300(R), dated 3 January 1952, in Snee, (n. 21).
75 Published at <https://www.shape.nato.int/page14612223#prettyPhoto>.
76 (C-M(52) 56, dated 25 July 1952), in Snee, (n. 21) 653–4.
77 The decision is published in Snee, (n. 21) 654.
78 Entered into force on 10 April 1954. The following supplementary Agreement between SHAPE and France on the status of SHAPE was signed on 5 November 1953, while the supplementary agreement between SACLANT and the US government was signed on 22 October 1954 (UNTS Vol 249).
80 For a list of signatures, accession, and ratification, see <https://www.state.gov/documents/organization/85631.pdf>.
81 In 1997 the area was extended to those States participating in Partnership for Peace and who signed the Further Additional Protocol which provides in Art. II: ‘Without prejudice to the rights of States which are Members of NATO or participants in the Partnership for Peace but which are not Parties to the present Protocol, the Parties hereto shall apply provisions identical to those set forth in the Paris Protocol, except as modified in the present Protocol, with respect to the activities of NATO military headquarters and their military and civilian personnel carried out in the territory of a Party hereto.’
82 In the history of NATO only two Headquarters have been activated as such, SHAPE and SACLANT (in the 2004 reorganization, HQ SACT became the successor of SACLANT). A third major NATO command was activated in 1952, Allied Command Channel, but with no Supreme Headquarters to support the execution of its tasks.
83 On MOUs see also: A. Muñoz-Mosquera, ‘Host Nation Support Arrangements: the NAC-approved Military-to-Military Tools’ (2011) NATO Legal Gazette, issue 24; A. Muñoz-Mosquera, ‘Memorandum Of Understanding (MOU): A Philosophical and Empirical Approach (Part I)’ (2014) NATO Legal Gazette, issue 34; F. Tuset-Anres, ‘Frequently Asked Legal Questions about the NATO-Accredited Centres of Excellence’ (2014) NATO Legal Gazette 34; and A. Muñoz-Mosquera, ‘Memorandum Of Understanding (MOU): A Philosophical and Empirical Approach (Part II)’ (2016) NATO Legal Gazette, issue 34; Oscar Schachter, ‘The Twilight Existence of Nonbinding International Agreements’, 71 AJIL (1977). Anthony Aust, ‘Alternatives to Treaty Making: MOUs as Political Commitments’ in Ducan B. Hollis (ed.), Treaties (2012). Anthony Aust, ‘The Theory and Practice of Informal International Instruments’, in International and Cooperative Law Quarterly (1986) 35. Anthony Aust Modern Treaty Law and Practice (2007); P. M. Eisemann, ‘Le Gentlemen’s agreement comme source du droit international’, 106 Journal du droit international (1979).
84 See MS-R (52) 2 (17 and 18 January 1952), in Snee, (n. 21) 271.
85 MS-R (52) 7 (4-5 June 1952), in Snee, (n. 21) 310.
86 ‘Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is ‘a super-State.’ In Reparation of Injuries Suffered in Service of the U.N., Advisory Opinion, 1949 I.C.J. 174. According to the ICJ’s Nuclear Weapons Advisory Opinion, international organizations are invested by States with powers, the limits of which are a function of the common interests whose promotion those States entrust to them, in Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ.
87 Cmd. 7868, Agreement Relative to the Status of the Members of the Armed Forces of the Brussels Treaty Powers, concluded 21 December 1949, by Belgium, France, Luxembourg, the Netherlands, and the United Kingdom.
88 MS(J)-R(51) 9, Summary Record of a Meeting of the Working Group on Status (Juridical Subcommittee), 23 February 1951, in Snee, (n. 21) 120 (for a discussion of Art. XVI). The use of the International Court of Justice appeared also to be a matter of discussion in the negotiations of the NAT, see 317 in The Brussels and North Atlantic Treaties, 1947–1949.
89 MS-R(51) 6, Summary Record of a meeting of the Working Group on Status, 27 February 1951, Snee, (n. 21) 127 ‘… there shall be no recourse to outside jurisdiction’ was changed to the current wording ‘… without recourse to outside jurisdiction’.
93 See e.g. Allied Joint Publication (AJP) 4.5(B), issued May 2013, Annex E, <http://nso.nato.int/nso/nsdd/apdetails.html?APNo=1562>.
94 The distinction between Supreme and Allied Headquarters is not recorded as a matter of discussions in the Travaux Préparatoires; specifically, the notion of ‘Allied Headquarters’ was added to the draft to identify that the responsibilities of a Contracting Party in the context of being a Sending State were extended to the Allied Headquarters as a matter of applying the NATO SOFA (see Snee, (n. 21) 358 and 619).
95 MS-R (52) 2 (17 and 18 January 1952), in J. Snee, ‘Travaux Preparatoires’, 277.
96 Serge Lazareff, (n. 92) 414–20.
97 Serge Lazareff, (n. 91) 419–20.
98 MS-D (51) 11(R) Status of Forces Agreement—Revised Text, dated 20 February 1951, in J. Snee, ‘Travaux Préparatoires’.
99 (MS(J)-R (51) 9, Summary Record of a Meeting of the Working Group on Status (Juridical Subcommittee), dated 23 February 1951, in Snee, (n. 21) 120.
100 Serge Lazareff, (n. 91) 436–7.
101 But not from the right to conclude supplementary (bilateral) agreements which introduces changes and derogations to SOFA. See comments to the Preamble and see Lazareff, (n. 90) 437.
102 This understanding corresponds to the procedures established under the Agreement Relative to the Status of the Members of the Armed Forces of the Brussels Treaty Powers (21 December 1949), by Belgium, France, Luxembourg, the Netherlands, and the United Kingdom), Art. 19 (Requests for meetings to discuss revisions were to be submitted to the Secretary-General of the Permanent Commission, who was obliged to call for a meeting within three months. If the meeting agreed to adopt a revision of the Agreement a protocol would be set up and come into force upon approval of all the Contracting Parties.) The procedure was partly duplicated in the US draft SOFA, Art. XVI, which appoints the Council as the receiver of requests for meetings and appointing the Secretary of the Council (today: The Secretary-General) to call for a meeting within three months. Contrary to the Agreement, the proposal did not set out a procedure, should the meeting decide to advance the request for revision (see D-D (51) 23, Status of Forces Agreement—Draft Submitted by the United States Deputy (23 January 1951), in Snee, (n. 21) 354–5.
103 D-D (51) 23, Status of Forces Agreement, Article XVII—Draft Submitted by the United States Deputy (23 January 1951), Snee, (n. 21) 355.
104 MS-D (51) 11(R) Status of Forces Agreement—Revised Text, 20 February 1951, J. Snee, ‘Travaux Préparatoires’.
105 Using the Brussels Agreement as a model, see D-R (51) 15, Summary Record of a Meeting of the Council Deputies (02 March 1951), Snee, (n. 21) 134.
106 MS-D (51) 22, Status of Forces Agreement—Comments of the United Kingdom Government (11 April 1951), J. Snee, Travaux Préparatoires, 472.
107 MS-R (51) 12, Summary Record of a Meeting of the Working Group on Status (20 April 1951), Snee, (n. 21) 160.
108 JMS(J)-R (51) 9, Summary record of a Meeting of the Working Group on Status (Juridical Subcommittee) dated 23 February 1951, in Snee, ‘Travaux Préparatoires’, 121.
109 MS-R (51) 6, Summary record of a Meeting of the Working Group on Status, dated 27 February 1951, in Snee, (n. 21) 128.
110 D-R (51) 15, Summary Record of a Meeting of the Council Deputies, dated 2 March 1951, in Snee, (n. 21) 134. In this meeting, the Chairman pointed out that Art. XVIII provides for the deposit of (only) four instruments of ratification in order to avoid unduly delays in the implementation.
111 C-M (52) 30, dated 7 June 1952, (Resolution recommended by the Working Group, adopted by the Council on 20 August 1952 in C-R (52) 18), in Snee, (n. 21) 650 and 655.
113 Ibid. 69 and 107–14.
114 Ibid. 69.
115 Ibid. 79.
116 On this question see J. Charpentier ‘Le retrait français de l’O.T.A.N’, 12 No. 1 Annuaire français de droit international (Année 1966), 409–33. See also C/6-D/7 Resolution on the Creation of an Integrated Force, SGM-0030-51 Provision of a Budget for SHAPE, and SGM-0004-51 Official Title of Supreme Allied Commander Europe and of his Headquarters.
117 MS-D (51) 22, Status of Forces Agreement—Comments of the United Kingdom Government, dated 11 April 1951, in Snee, (n. 21) 472.
118 The first two accessions (Greece and Turkey) were unconditional (NAC resolution CR (52) 18 as of 20 August 1952, quoted by Serge Lazareff, 430). The Federal Republic of Germany was invited to join NATO in 1954, and the accession to the North Atlantic Treaty was subjected to the conditions set up by Paris Agreements, concluded 23 October 1954, which ended the post-war occupation of the Federal Republic of Germany. In terms of NATO SOFA, the German accession was made conditional to the conclusion of an agreement between the Federal Republic of Germany and the former occupational powers on the terms of the (continued) stationing of their troops in the Federal Republic (NAC resolution CM (55) 84 as of 5 October 1955, quoted by Serge Lazareff, 431). The occupational powers had enjoyed immunities and privileges, which were more extensive than the status provided under NATO SOFA, and a compromise—based on NATO SOFA—had to be reached. The work was initiated in 1955, under the lead of a chairman appointed by the North Atlantic Council, while the negotiations were conducted amongst the relevant States. The negotiations were concluded four years later. Since all the signatories to the supplementary agreement had to deposit their ratification of that agreement before the Federal Republic of Germany was able to ratify the NATO SOFA, the SOFA only entered into force for the Federal Republic of Germany in 1963, and late 1969, the Federal Republic of Germany joined the Paris Protocol.
119 The ratification list (with reservations) <https://www.state.gov/documents/organization/85631.pdf>.
120 First draft of Art. XIX (identical to the US draft) was presented in MS-D (51) 11(R) dated 20 February 1951 (Snee, (n. 21) 395). The Juridical Subcommittee adopted the draft Article without any comments in their meeting MS(J)-R (51) 9, dated 23 February 1951.
122 The reference to the territory of Turkey was added in 1952, when Turkey (and Greece) joined the Alliance and the definition was further modified in 1963, when the French departments of Algeria were excluded.
123 In the drafting of the Protocol, France explicitly noted that the ‘Protocol would apply to territory outside Metropolitan France only insofar as the Agreement applied to such territories under its Article XX.’ See MS-R (52) 3, dated 22 January 1952), in Snee, (n. 21) 282.
124 Supplementary agreements have been concluded with several NATO States; not all are available online, and some of the links below only refer to press statements made on the signature—listed in the order of signature: USA (signed 1954, UNTS Vol 249); Italy (signed 1961); <http://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=1963-07-09&atto.codiceRedazionale=062U2083&elenco30giorni=false>; The Netherlands (signed 1964, amended from 1969 and 1971), <https://treaties.un.org/doc/Publication/UNTS/Volume%20544/v544.pdf>, <https://treaties.un.org/doc/Publication/UNTS/Volume%20790/v790.pdf>; Belgium (1967, <https://diplomatie.belgium.be/en/services/interministerial_committee_for_host_nation_policy/main_seat_agreements_and_treaties>; Germany (1959); Spain (signed 2000), <https://treaties.un.org/doc/Publication/UNTS/Volume%202156/v2156.pdf>; Norway (signed 2008), <http://emeritus.lovdata.no/cgi-wift/udoffles?doc=tra-2008-08-06-021.txt&>; Estonia (signed 2012), <https://www.riigiteataja.ee/aktilisa/2140/5201/3002/NATO_HQ_engl.pdf>; Portugal (signed 2013), <https://dre.pt/pdfgratis/2014/09/17000.pdf>; Albania (2014), <http://www.mod.gov.al/eng/index.php/newsroom/240-minister-kodheli-visit-to-the-supreme-headquarters-allied-powers-europe-shape>; Lithuania (signed 2015): <https://www.e-tar.lt/portal/en/legalAct/4ad2fe60d79811e4894f9bde45468d3f>, Romania (2015), Press release <https://www.mae.ro/en/node/34915>; Latvia (signed 2015/2016), <https://m.likumi.lv/doc.php?id=286843>; Poland (signed 2016), <http://isap.sejm.gov.pl/Download?id=WDU20170001179&type=2> and for the entry into force: <http://isap.sejm.gov.pl/Download?id=WDU20170001180&type=2>.
125 Further Additional Protocol to the Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces (19 December 1997).
127 Legal Position of an international organization is made of the legal status (legal personality, legal capacity (entitled to do), and competence (empowered to do)), privileges and immunities and responsibility. See P. H. F. Bekker, The Legal Position of Intergovernmental Organization. A Functional Necessity Analysis of Their Legal Status and Immunities (Dordrecht, Marinus Nijhoff Publishers, 1994).
128 MS-R (52) 2, dated 17 and 18 January 1952, in Snee, (n. 21) 271–3.
129 P. H. F. Bekker, (n. 127), 63.
130 To include the States signatories of the Further Additional Protocol to the Agreement among the States Parties to the North Atlantic Treaty and the other States Participating in the Partnership for Peace regarding the Status of their Forces, dated 19 December 1997 and which in its Art. III incorporates by reference the Paris Protocol provisions.
132 Snee, (n. 21) 594.
133 D-D (51) 300 (R), dated 3 January 1952, in Snee, ‘Travaux Préparatoires’, 584.
134 J. Snee, ‘Travaux Préparatoires’ 602 (MS-D (52) 3, dated 18 January 1952). This language could possibly have been inspired by the functional approach expressed in Art. 104 of the Charter of the United Nations: ‘The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.’
135 MS-R (52) 3, dated 22 January 1952, in Snee, (n. 21) 284.
136 MS-R (52) 5, dated 24, 25, and 26 March 1952, in Snee, ‘Travaux Préparatoires’, 299. It appears that the drafting of this part of both the Ottawa Agreement and the Paris Protocol were (partly or mainly) driven by considerations of national property laws, and the US statement stands out as articulating the need for accommodating the functional, operational necessities of an Allied Headquarters. Almost 40 years later, Mr. Leonardo Díaz-González submitted the following statement: ‘The property of an international organization as a whole, according to the practice of States and the legal instruments relating to the various international organizations (constituent instruments, headquarters agreements, conventions, etc.), is considered outside the scope of ordinary property law. The permanent assignment of such property to institutional ends helps to prevent them from being put to a use other than the one intended. They are therefore granted a public law regime, which makes them immune from alienation and attachment.’ A/CN.4/424, Fourth report on relations between States and international organizations (second part of the topic), by Mr. Leonardo Diaz Gonzalez, Special Rapporteur (24 April 1989).
138 MS-R (51) 17, dated 30 April 1951, in Snee, (n. 21) 187–8. The text was deleted with the understanding that all property would be owned by the Organization and not by subordinate agencies.
141 F. Seyersted, Common Law of International Organizations (Martinus Nijhoff Publishers, Leiden, 2008), 48–9 and 364. See also 1 Yearbook of the International Law Commission (1987), 205, para. 58, UN Doc. A/CN.4/SER.A/1987.
142 H. Schermers, N. Blokker (n. 141) 989. See also P. H. F. Bekker, The Legal Position of Intergovernmental Organizations. A Functional Necessity Analysis of Their Legal Status and Immunities (Dordrecht: Martinus Nijhoff Publishers, 1994), 56. See also A. S. Muller, (n. 57), 74.
145 NATO funding and budgetary procedures provides that NATO budgets and investments are approved by the Council, as supported by a number of bodies, to include the Investment Committee, which is tasked to implement the NATO Security Investment Programme (NSIP). NSIP ‘finances the provision of the installations and facilities needed to support the roles of the two Strategic Commands—Allied Command Operations and Allied Command Transformation’. See <http://nato.int/cps/en/natohq/topics_67655.htm?selectedLocale=en.
148 Host Nation Support Memoranda of Understanding. <http://www.aco.nato.int/finland-and-sweden-signing-a-memorandum-of-understanding-with-nato-for-operational-and-logistic-support>.
149 North Atlantic Treaty Organization. NATO Archives, ‘Purchases by SHAPE from International Funds from non-NATO countries.’ <http://archives.nato.int/>.
150 North Atlantic Treaty Organization. Resolute Response Mission in Afghanistan, ‘The Resolute Support (RS) Recruitment Office manages the recruitment for all International Civilian Consultants (ICCs) and Local Civilian Hire (LCH) positions, within the Crisis Establishment for all RS Area of Operation.’ <http://www.rs.nato.int/images/stories/File/general_information_for_applicants.pdf>.
151 See e.g. Allied Joint Publication (AJP) 4.5(B), issued May 2013, <http://nso.nato.int/nso/nsdd/apdetails.html?APNo=1562>, which envisages that Supreme Headquarters (Strategic Commands) develop and conclude standing Host Nations Support Arrangements with both NATO and PfP Nations, as well as States with whom there are no pre-existing arrangements (1–5). Some States require Parliamentary approval of these arrangements (see <http://www.swedenabroad.com/Pages/StandardPage.aspx?id=79059&epslanguage=en-GB>).
153 HQ SACT’s Framework for Collaborative Interaction (<http://www.act.nato.int/ffci>) is an example of this type of engagement.
158 A/CN.4/424 and Corr.1 Fourth report on relations between States and international organizations (second part of the topic), by Mr. Leonardo Díaz-González, Special Rapporteur, Extract from the Yearbook of the International Law Commission: 1989, vol. II(1), Topic: Status, privileges and immunities of international organizations, their officials, experts, etc., 161.
159 Snee, (n. 21) 616.
161 P. H. F. Bekker (n. 127), 95.
162 On the recognition of immunity from jurisdiction based on customary law see District Court of Limburg case-list number C/03/217614/HAZA16/130, dated 8 February 2017. ‘Applying the criterion laid down by the Netherlands Supreme Court in the Spaans judgment, AJFCH and SHAPE have functional immunity.’ The silence of the Protocol on immunity from jurisdiction or inviolability of Allied Headquarters premises is a logical and technical result of how the Protocol was drafted as an add-on to the SOFA and thus a consequence of the provisions on providing of facilities, protection of installations, and the jurisdictional provisions found in NATO SOFA. In turn, and in accordance with D-D(52)2, dated 3 January 1952, the Ottawa Agreement can be referred for only the questions not covered by the NATO SOFA and the Protocol. The reality is that supplementary agreements have covered most of those questions, as well as customary law.
163 A. S. Muller, 159. On ‘functional immunity’ for Allied Headquarters see District Court of Limburg (Maastricht) judgment, case no. C/03/217614/HAZA16/130, dated 8 February 2017, where in para. 4.23 the court states: ‘Applying the criterion laid down by the Netherlands Supreme Court in the Spaans judgment, AJFCB and SHAPE have functional immunity.’ (Emphasis added.)
164 See A/CN.4/424 and Corr.1, Fourth report on relations between States and international organizations (second part of the topic), by Mr. Leonardo Díaz-González, Special Rapporteur Extract from the Yearbook of the International Law Commission:1989; Topic: Status, privileges and immunities of international organizations, their officials, experts, etc.: ‘The principle of the immunity of the property and assets used by an international organization to perform its functions and carry out its official activities is accepted, as we have seen, by authors of legal works and by State practice and is fully reflected in many bilateral, multilateral and even unilateral legal instruments currently in force. The principle implies immunity from search, requisition, confiscation, expropriation or any other form of administrative or judicial coercion or interference, even though such immunity may not appear essential in the case of all international organizations.’ (167).
166 This is summarized by Special Rapporteur Mr. Leonardo Diaz Gonzalez as ‘[t]he State is legally bound to extend special protection to the premises of international organizations, as it must to diplomatic premises. Inviolability of the premises obliges the State not only to abstain from certain acts but also to afford active protection of the premises. These principles have been recognized in many headquarters agreements or have been considered obligatory by States;’ in A/CN.4/424, Fourth report on relations between States and international organizations (second part of the topic), (1989), (see 167).
167 August Reinisch (ed.), The Conventions on the Privileges and Immunities of the United Nations and Its Specialized Agencies—A Commentary (Oxford Commentaries on International Law, OUP, 2016), 125–54 (Bartholomeusz and Pavoni).
168 NATO SOFA, Art. VII, para. 11; its applicability to an Allied Headquarters, was confirmed by the Working Group on Status in the course of the drafting of the Paris Protocol; See J. Snee, ‘Travaux Préparatoires’ 298 (MS-R (52) 5, dated 24, 25, and 26 March 1952).
169 J. Snee, ‘Travaux Préparatoires’ 310 (MS-R (52) 7, dated 4-5 June 1952).
170 August Reinisch ‘The International Relations of National Courts: A Discourse on International Law Norms on Jurisdiction and Enforcement Immunity’, in The Law of International Relations—Liber Amicorum Hanspeter Neuhold (Eleven International Publishing, 2007), 297: ‘there is a widely shared opinion that international organizations enjoy immunity from suit also as a matter of customary international law’.
171 C. Ryngaert, ‘The Immunity of International Organizations before Domestic Courts: Recent Trends’ (2009) Institute for International Law, Working Paper No 143, section 3: ‘Surprisingly, in many headquarters agreements with international organizations only immunity from execution/enforcement is regulated. Various courts have inferred immunity from jurisdiction from the conferral of immunity from execution in such agreements, however. In a 2005 Italian case, the court held that the formulation of Article 1 of the Protocol on the Privileges and Immunities of the European University Institute—which only regulated immunity from execution—presupposed that the Institute also enjoyed immunity from jurisdiction whenever its official activities were concerned. Similarly, in a 2001 Belgian case, the court seems to have inferred from a provision in the headquarters agreement with the League of Arab States that the goods and assets which the League uses for the exercise of its official activities in Belgium enjoy immunity, a phrase which denotes immunity from execution, that the League may also enjoy immunity from jurisdiction. This inference is logical, as ordinarily an international organization will have to appear in court before measures of execution are considered.’
172 See A/CN.4/424 and Corr.1, Fourth report on relations between States and international organizations (second part of the topic), by Mr. Leonardo Díaz-González, Special Rapporteur Extract from the Yearbook of the International Law Commission: 1989; as quoted (n. 165).
178 ‘NATO’s dispute resolution system has its legal basis within the Ottawa, in particular its Art. 24, and is ratified by all member States … The first mechanism was the NATO Appeals Board created in 1965 and the predecessor of the current NATO Administrative Tribunal’ <http://www.nato.int/cps/en/natohq/topics_114072.htm>.
180 Waite and Kennedy v. Germany (1999). For an elaborate discussion on the significance of this and subsequent cases before the European Court of Human Rights and in national courts, please see A. Reinish, ‘Waite and Kennedy v. Germany’, Application No. 26083/94; ‘Beer and Regan v. Germany’, Application No. 28934/95, (1999) AJIL 93(4):933.
185 The NATO Civilian Personnel Regulations, Annex IX, para. 6.8.4: Judgments of the Tribunal are final and shall not be subject to any type of appeal by either party. The North Atlantic Council approves NATO Civilian Personnel regulations. <http://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2017_07/20170711_170711-cpr-amnd29-en.pdf>.
186 C-M(2011)0043, NATO RECORDS POLICY, <http://www.nato.int/nato_static/assets/pdf/pdf_archives/20120327_C-M_2011_0043-NRP.pdf>. It is noted that the numbering used in the NATO policy is Roman, whereas as both the Ottawa Agreement and the Paris Protocol use Arabic numbering. For a comparison of policy on information management, see also the practice of the UN, see Gian Luca Burci ‘Inviolability of Archives’, in August Reinisch (ed.), The Conventions on the Privileges and Immunities of the United Nations and Its Specialized Agencies—A Commentary (Oxford Commentaries on International Law, OUP, 2016), 160–1.
187 See e.g. the very detailed analysis of the extend of the inviolability of documents and archives of international organizations in A/CN.4/432, 11 May 1990, International Law Commission, Fifth Report on Relations Between States And International Organizations (Second Part of the Topic) by Mr. Leonardo Diaz-Gonzalez, Special Rapporteur.
188 Particularly A/CN.4/432, 11 May 1990, International Law Commission, Fifth Report on Relations Between States and International Organizations (Second Part of the Topic) by Mr. Leonardo Diaz-Gonzalez, Special Rapporteur.
189 See Gian Luca Burci, ‘Inviolability of Archives’ in Reinisch (ed.), ‘The Conventions on the Privileges and Immunities of the United Nations and Its Specialized Agencies—A Commentary’, 175: ‘This interpretation is supported by the absolutely consistent practice of the UN, as evidenced by the examples provided above, in making documents and information available on a voluntary basis without prejudice to the privileges and immunities of the UN. The result may largely appear to be the same to that of a waiver […] [H]owever, the voluntary nature of disclosure while maintaining the applicability of the underlying immunity enables the UN to maintain a tighter control over the use of the disclosed information beyond the immediate scope of the reason for the voluntary disclosure.’
190 Snee, (n. 21) 594–5 (D-D (52) 2, dated 3 January 1952).
191 J. Snee, ‘Travaux Préparatoires’, 303 (MS-R (52) 5, dated 24, 25, and 26 March 1952).
192 J. Snee, ‘Travaux Préparatoires’, 307 (MS-R (52) 6, dated 2 and 3 May 1952).
193 Snee, (n. 21) 642 (MS-D (52) 9, comments submitted by the Italian Delegation, dated 24 May 1952).
194 Snee, (n. 21) 584 (D-D (51) R, dated 3 January 1952).
195 Snee, (n. 21) 594–5 (D-D (52), dated 3 January 1952).
196 Snee, (n. 21) 272 (MS-R (52) 2, dated 17 and 18 January 1952).
197 Snee, (n. 21) 599 (MS-D (52) 3, dated 18 January 1952); and 609 (D-D (52) 27, dated 24 January 1952).
198 Snee, (n. 21) 605 (D-D (52) 24, dated 24 January 1952).
199 Snee, (n. 21) 303 (MS-R (52) 5, dated 24, 25, and 26 March 1952).
200 Snee, (n. 21) 307 (MS-R (52) 6, dated 2 and 3 May 1952).
201 Snee, (n. 21) 313 (MS-R (52) 7, dated 4 and 5 June 1952). Receiving State law is assumed to apply ‘in the absence of international agreement to the contrary’. In the meeting, the USA made a reservation (to the record) that the principles adopted in Art. 9 would not serve as a precedent.
202 NATO Financial Regulations (NFR) are approved by the Council, most recently in C-M(2015)0025; the Financial Rules And Procedures (FRP) governing the implementation of the NFR and instructing the financial administration of all NATO bodies are adopted in accordance with the NFR Article 4.4 through approval by the respective finance committees. Available at: <http://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2016_03/20160316_2016-nfr-nfp.PDF>. See also C-M(2017)0035-AS1 <http://www.nato.int/issues/iban/financial_audits/2015-dcps-eng.pdf> and C-M(2015)0077-AS1 <http://www.nato.int/issues/iban/iban_report_2014-e.pdf>.
203 On currency see also Chapter 26 ‘Foreign Exchange Regulations’.
205 Snee, (n. 21) 274–5 (MS-R (52) 2, dated 17 and 18 January 1952).
206 J. Snee, ‘Travaux Préparatoires’, statement by the Italian Government on 619 (MS-D (52) 5, dated 14 March 1952); and similar statement by the Netherlands Government on 620: ‘… cannot be interpreted as if they meant ‘shall under all circumstances effectuate’.
207 Third Report of the Special Rapporteur, Mr. Leonardo Diaz Gonzalez (ILC (1986)), para. 31, and A/CN.4/439, Sixth report on relations between States and international organizations (second part of the topic), by Mr. Leonardo Diaz Gonzalez, Special Rapporteur, Topic: Status, privileges and immunities of international organizations, their officials, experts, etc. Extract from the Yearbook of the International Law Commission: 1991, vol. II(1).
209 The Council articulated this recommendation to Member States in support of the SHAPE-France negotiations in C-M(53)74 (10 June 1953), reprinted in Snee, (n. 21), 659–61.
210 The exemption was further detailed in a 1950 Supplementary Agreement with France and in other subsequent bilateral agreements (Belgium, 1974) and amended again in 1959 exempting the Resettlement Fund from taxes and customs duties (Third Protocol to the General Agreement). The members of the Commission and of the Court were exempt from taxes on their salary in the Fifth Protocol to the General Agreement, done in 1990. The exemption from sales taxes is admittedly not addressed in the General Agreement itself, but is included in hosting agreements and in bilateral agreements (such as the agreements with France and with Belgium) with the Member States; see <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016801ce2b7>.
211 It was suggested to include a definition of ‘tax’ in the Protocol (see Snee, (n. 21) 302, MS-R(52) 5, dated 24, 25, and 26 March 1952), but the Working Group may have omitted this idea when the general reference to the application of the NATO SOFA, Art. XI, was inserted in Art. 8, para. 2, of the Protocol. The term ‘charges for services rendered’ was subject to discussion in a few meetings, but rather than including a statement on ‘public utilities’ or that services had to be requested to be subject to payment, the Working Group stayed with the language used in the NATO SOFA, Art. XI, para. 12 (see Snee, (n. 21) 312–13, MS-R(52)7, dated 4–5 June 1952). In a current context and as amended by the Supplementary Agreements, this is rarely a matter for discussion.
213 See <http://ec.europa.eu/taxation_customs/common/faq/taxation/faq_3947_en.htm#9>. Here it is also identified that Transport taxes mainly include taxes related to the ownership and use of motor vehicles. Taxes on other transport equipment (e.g. planes), and related transport services (e.g. duties on charter or schedule flights) are also included here, when they conform to the general definition of environmental taxes. The transport taxes may be ‘one-off’ taxes related to imports or sales of the equipment or ‘recurrent taxes such as an annual road tax’. For a UN perspective on taxes on transportation and ‘public utility services’, see United Nations Juridical Yearbook, Chapter VI. Selected legal opinions of the Secretariats of the United Nations and related intergovernmental organizations (1973) Part Two. Legal activities of the United Nations and related intergovernmental Organizations, opinion 132: ‘National legislation providing for the levying of certain air travel taxes—The United Nations should be exempt from such taxes under section 7 (a) of the Convention on the Privileges and Immunities of the United Nations.’
215 Snee, (n. 21) 642 (MS-D (52) 9, dated 24 May 1952).
216 Snee, (n. 21) 647 (C-M (52) 30, dated 7 June 1952).
217 See H. Schermers, N. Blokker (n. 140) 1033. ‘[T]he application of the distinction between acta iure gestionis and acta iure imperii to acts of international organizations has been explicitly rejected by courts or other countries.’
218 C-M (53) 62; Protocol on the Status of Allied Headquarters—implementation of Article 8: Tax Exemption for SHAPE and Subordinate Headquarters (5 May 1953), in Snee, (n. 21) 656 ff.
219 Snee, (n. 21) 661.
220 Snee, (n. 21) 99.
221 The most prominent is Allied Joint Publication 4.5 (B) on Host Nation Support (<http://nso.nato.int/nso/nsdd/apdetails.html?APNo=1562&LA=EN>), but also STANAG 6025 (most recent edition adopted in 2013, <http://nso.nato.int/nso/nsdd/apdetails.html?APNo=1494&LA=EN>), which is an understanding among the (participating) NATO States on the Financial Principles and Procedures for the Provision of Support within NATO. It relates only to the NATO SOFA and Art. XI, and as such reaches beyond the wording of that Article in its recommendation that Nations conclude arrangements to ensure that no profit or loss should be made by a supporting Party when it provides support. In practice, this means that generally only incremental costs (as defined in the STANAG) should be recovered, certain overhead costs should not be charged and no lease should to be charged for use of land and buildings owned by a supporting Party. Furthermore, where permitted by the NATO SOFA, other NATO Agreements, or national law, support should be provided free of all duties, taxes and similar charges. The articles of the NATO SOFA referenced above are considered minimum provisions. Within the Alliance concepts of Host Nation Support have overtaken both the basic requirements stated in the NATO SOFA, and the procedures for requesting, organizing, and reimbursing support.
222 The criterion in NATO SOFA, Art. XI, para. 4, is use, not ownership. Directive 2006/112, Art. 151, para. 1 reads along the same lines: ‘Member States shall exempt the following transactions [… ] c. the supply of goods or services within a Member State which is a party to the North Atlantic Treaty, intended either for the armed forces of other States party to that Treaty for the use of those forces, or of the civilian staff accompanying them, or for supplying their messes or canteens when such forces take part in the common defence effort […] d. the supply of goods or services to another Member State, intended for the armed forces of any State which is a party to the North Atlantic Treaty […]’.
223 Local purchases to supply the force (i.e. through a canteen) are authorised in NATO SOFA, Art. IX, para. 2, however, the provision itself does not exempt the visiting force from local taxes or duties.
224 The Sending State decides whether the quantities are reasonable; the Receiving State is entitled to exercise control through its right to authorise, refuse or restrict the sale of these goods to the civilian component and the dependents; it cannot, however, impose taxes or duties on their importation.
225 The Modernised Customs Code, Regulation (EC) 450/2008 which superseded the Council Regulation (EEC) No. 2913/92 establishing the Community Customs Code; these provisions were previously found at 91, paras. 2(e) and 163, para. 2(e) of the Community Customs Code. The Modernised Customs Code will be replaced by the Union Customs Code, Regulation (EU) 952/2013 (fully replaced by 2016); the provisions remain the same but are renumbered and the new significant Articles are: 144 replaced by 226; 145 replaced by 227.
228 Council Directive 2006/112/EC, Art. 151, para. 1(d), reads: ‘Member States shall exempt the following transactions d. the supply of goods or services to another Member State, intended for the armed forces of any State which is a party to the North Atlantic Treaty, other than the Member State of destination itself, for the use of those forces, or of the civilian staff accompanying them, or for supplying their messes or canteens when such forces take part in the common defence effort.’
229 Council Directive 2006/112/EC, Art. 151, para. 1(c), reads: ‘Member States shall exempt the following transactions […] c. the supply of goods or services within a Member State which is a party to the North Atlantic Treaty, intended either for the armed forces of other States party to that Treaty for the use of those forces, or of the civilian staff accompanying them, or for supplying their messes or canteens when such forces take part in the common defence effort […].’
230 See e.g. Latvia’s Cabinet of Ministers Regulation No. 908, 18.12.2012, Annex 2 ‘Procedures for the Application of Zero Rate of Value Added Tax to the Supply of Goods and Services Provided to Diplomatic and Consular Missions, International Organisations, European Union Institutions and the North Atlantic Treaty Organisation (NATO), and Procedures for the Reimbursement of Excise Duty for Excisable Goods Purchased in the Republic of Latvia.’
231 Case C-225/11, para. 18. Judgment of the Court (Eighth Chamber) of 26 April 2012, The Commissioners for Her Majesty’s Revenue and Customs v. Able UK Ltd. Reference for a preliminary ruling: Upper Tribunal (Tax and Chancery Chamber)—United Kingdom.
236 The complete Art. 11 of Directive 2008/118/EC reads: ‘In addition to the cases referred to in Article 33(6), Article 36(5), and Article 38(3) as well as those provided for by the Directives referred to in Article 1 excise duty on excise goods which have been released for consumption may, at the request of a person concerned, be reimbursed or remitted by the competent authorities of the Member State where those goods were released for consumption in the situations fixed by the Member States and in accordance with the conditions that Member States shall lay down for the purpose of preventing any possible evasion or abuse.’
237 The Longman Synonym Dictionary (Roadale Press, 1987) defines ‘canteen’ as a ‘shop, store or commissary, Brit. Military. NAAFI, both US Army post exchange, PX, Both US Air Force base exchange, BX’.
238 Ibid. defines ‘mess’ as ‘meal, sitting, table; dish, food victuals, US vittles’.
239 In the initial meeting on 17–18 January 1952, SHAPE confirmed that a SHAPE issued identity card would do away with the requirement to carry personal orders at all time (Snee, (n. 21) 272); in the meeting, the Italian representative suggested that it would helpful if regular lists of dependents could be provided to the host State authorities. SHAPE replied with the notion that this should be embedded in the bilateral (supplementary) agreements. In later meetings (24–26 March 1952 and 4–5 June 1952) it was requested that a specimen of the identity card be shared with the receiving State (possibly to ensure that it was recognized by the national authorities), See Snee, (n. 21) 298 and 310. This was in part linked also to the request to be provided specimens of national identity cards pursuant to Art. III of the SOFA.
240 The developments in International Civil Service employment relations are described by Serguei Tarassenko and Ralph Zacklin, ‘Chapter III.1., Independence of International Civil Servants (Privileges and Immunities)’, in Chris de Cooker (ed.), International Administration—Law and Management Practices in International Organizations (United Nations Institute for Training and Research/ Martinus Nijhoff Publishers, 1990).
241 Bowett’s Law of International Institution, 316 ff. The International Court of Justice commented on this special relationship between an international organization, its international staff, and the requirement for an organization to provide functional, legal protection of its staff in the Reparation Case. In essence, the functions vested by nations in the organization have to be supported by a functional link between the organization and its staff, and this equally has to be recognised by the nations participating in the international organization. The protection is, being functional in purpose and nature, not reserved to international civil servants but extends in fact to all agents; however civil servants are more vulnerable to pressure by any government and to alleged contraventions of particularly the principles of independence and loyalty because they answer entirely to the organization in matters of employment (and thus status).
242 Limitations are usually laid down in staff regulations or in the employment contract, to include prohibitions against taking outside employment, accepting honorarium, gifts, or awards from other entities, limitations as to making public statements or engaging in political activities. The limitations most clearly apply to international civil servants, but may equally extend to ‘agents’ or other groups of persons attached to an international organization. The UN convention on the safety of UN and associated personnel is an example of that since the personnel defined in the Convention’s Art. 1 must: ‘refrain from any action or activity incompatible with the impartial and international nature of their duties’. The status of personnel in peace operations is further described in Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the Safety Convention against the Background of General International Law (Martinus Nijhoff Publishers, 2007).
243 Ziegler, ‘Art. 105’ in B. Simma et al. (eds.), The Charter of the United Nations—A Commentary’ (3rd edn, OUP, 2012), MN 32. See also C. F. Amerasinghe, 370 ff. Recent examples of Receiving State/seat agreements are: Agreement on the Privileges and Immunities of the International Criminal Court, Adopted by the Assembly of States Parties, First session, New York, 3–10 September 2002, Official Records, ICC-ASP/1/3. The agreement provides differentiated (diplomatic and functional) immunities and privileges to the court, its highest staff, state representatives, the registrar and administrative staff, as well as experts, counsel, witnesses, and victims when required to appear before the Court; Agreement between Germany and United Nations concerning the Headquarters of the United Nations Volunteers Programme; United Nations Treaty Series, <http://untreaty.un.org/unts/120001_144071/7/1/00005112.pdf>, agreement between Germany and United Nations concerning the Headquarters of the United Nations Volunteers Programme (with exchange of letters signed at New York on 10 November 1995), see Art. 14. ‘… officials of the Programme shall, regardless of their nationality, be accorded the privileges and immunities as provided for in Articles V and VII of the General Convention.’ Agreement on the Privileges and Immunities of the International Criminal Court, Art. 23, provides limited but functional immunities to nationals of particular States.
244 NATO SOFA and Paris Protocol do not provide status for locally employed (‘local hires’) other than that their employment will be governed by the laws of the host nation. For different approaches see e.g. Agreement on the Privileges and Immunities of the International Criminal Court, Art. 23. With respect to field headquarters, were NATO governing treaties are not applicable, the operation/mission/activity-specific status-of-mission/forces agreements apply, e.g. Dayton Accords for Bosnia-Herzegovina/Croatia and Serbia, and UNMIK/KFOR Joint Declaration of 17 August 2000).
248 J. Snee, ‘Travaux Preparatoires’, 248, par. 4 in D-R (51) 48, dated 19 June 1951, concerning NATO SOFA); (D-D (51) 224, dated 31 August 1951, 574, on the Ottawa Agreement).
249 Spanish Supreme Tribunal: Sentencia T.S. (Sala 3) de 29 de junio de 2011: ‘La exención del impuesto sobre hidrocarburos cuyo reconocimiento por la sentencia recurrida ha determinado el recurso del Letrado de la Administración es un derecho que se concede en el Acuerdo Complementario, concretamente en su artículo 14.2 g), en el que, sin hacerse distinción alguna por razón de nacionalidad, se dispone que “los miembros y las personas dependientes gozarán de exención de derechos e impuestos respecto de cantidades razonables de tabaco, bebidas alcohólicas y carburantes, de conformidad con las cifras convenidas en el CC (Canje de Cartas)”.’ (Emphasis added.)
250 Snee, (n. 21) 297 (MS-R (52) 5, Summary Record of a Meeting of the Working Group on Status, 24, 25, and 26 March 1952).
251 Snee, (n. 21) 297 (MS-R (52) 5, Summary Record of a Meeting of the Working Group on Status, 24, 25, and 26 March 1952).
252 Snee, (n. 21) 311 (MS-R (52) 7, Summary Record of a Meeting of the Working Group on Status, 4 and 5 June 1952).
254 Serguei Tarassenko and Ralph Zacklin, (n. 239) III.1/10: ‘The rationale for of the exemption from taxation of salaries and emoluments received from international organizations is to achieve equality of treatment for all officials irrespective of nationality or residence, and to ensure that funds contributed by all Members to the budgets of the organizations would not be channelled to the Treasury of a particular Member State which is levying taxes on staff member’s salaries or in the Organization has its headquarters.’
255 Serge Lazareff, ibid. 89, quoting Dr. Richard Schubert, ‘Military Logistic Support Overseas’, Military Law Review (July 1962).
256 See Agreement between the United States of America and the Kingdom of Belgium regarding the Status of a category of United States Forces Personnel, 13 July 2012, <www.state.gov/documents/organization/244947.pdf>.
257 Annex B to Allied Joint Publication (AJP) 4.5(B), issued May 2013, <http://nso.nato.int/nso/nsdd/apdetails.html?APNo=1562>. One reservation is made to the definition: ‘The Republic of Poland does not recognise contractors as part of the force in the meaning of “armed forces” definition in NATO and PfP Status of Forces Agreements (SOFAs).’
258 See also Yearbook of the International Law Commission, 1989, VOL II (158): ‘[i]n particular, no State should derive unwarranted fiscal advantages from the funds put at an organization’s disposal.’ With regard to the staffs of international organizations the ‘minimum principle appears to be that officials of international organizations are immune from legal process in respect of all acts performed in their official capacity’.
259 See also the French comments found in Snee, (n. 21) 592 (NATO Document D-D (52) 2, dated 3 January 1952).
260 Snee, (n. 21) 308 (MS-R (52) 6, dated 2–3 May 1952).
261 Snee, (n. 21) 647, (C-M (52) 30, Final draft and report of Chairman of Working Group, 7 June 1952).
262 J. Snee, ‘Travaux Preparatoires’, 130 (D-R(51)15, Summary record of a Meeting of the Council Deputies, 2 March 1951; Report from the Working Group). Several NATO Member States have taken such measures and introduced separate visa regimes or waived requirements to comply with residency and registration requirements. This is consistent with the principles repeated in Art. 18 of the Ottawa Agreement providing that ‘Officials of the Organization agreed upon under Art. 17 shall […] be granted, together with their spouses and members of their immediate families residing with and dependent on them, the same immunities from immigration restrictions and aliens’ registration as is accorded to diplomatic personnel of comparable rank.’
263 The 1946 Convention on the Privileges and Immunities of the United Nations exempts UN officials from the national regulatory framework regarding immigration and residence in Art. V on Officials of the UN, section 18: ‘[o]fficials of the United Nations shall […] (d) be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration’.
264 Amerasinghe, ibid. 390.
266 Headquarters Agreement between the International Criminal Court and the Receiving State (ICC-BD/04-01-08, 2008), <http://www.icc-cpi.int/NR/rdonlyres/99A82721-ED93-4088-B84D-7B8ADA4DD062/280775/ICCBD040108ENG1.pdf>. Art. 37, para. 1 of the Agreement provides Court officials, State representatives and counsel and persons assisting counsel with the right to ‘unimpeded entry into, exit from and movement within the host State’. Furthermore, paragraph two states that visas are not necessarily required, but if so they are to be ‘granted free of charge and as promptly as possible’. These visa privileges are extended to ‘members of the family forming part of the household’ in para. 3.
268 See Supreme Court of The Netherlands. 6 June 2008, LJN BD 3159/no. 43787/LJN BD 3187/no. 43789. For a more detailed analysis of these cases see Jarin Nijhof, ‘To Reside or not to Reside’, in NATO Legal Gazette (2008), Issue 15.
270 The Court goes on to rule that administrative, technical and service personnel sent by a Sending State will be considered as residents after they have been working in the Netherlands for ten years. This is not however, applicable to officials of an international organization.
271 See Eileen Denza, Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations (4th edn, OUP, 2016), 341. See also Jan Wouters, Residence of Individuals in EU Law (2010), 3 <http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP148e.pdf>.
272 For the application of this test in the context of diplomatic relations see Denza, (n. 273) 341–6. Where this becomes complicated is if the individual has remained in the Receiving State for a longer period of time while performing the functions, which initially brought the individual to the Receiving State and has consistently remained in the same status.
273 See e.g.: ICC Headquarters Agreement (referenced in n 268) Art. 42 provides that ‘[d]uring their period of employment, officials of the Court, members of their family forming part of their household and their private or domestic servants shall be allowed to obtain from the host State a driving licence on presentation of their valid foreign driving licence or to continue to drive using their own valid foreign driving licence’ (emphasis added). See also Status of Forces Agreement between the United States of America and Poland (11 December 2009), <http://www.fas.org/irp/world/poland/sofa.pdf>.
274 See the 1968 Geneva Convention on Road Traffic, Art. 41, para. 2b, which states that ‘[d]riving permits issued by a Contracting Party shall be recognized in the territory of another Contracting Party until this territory becomes the place of normal residence of their holder.’ ‘Normal residence’ in this context is not defined in the 1968 Convention, nor is it defined in the European Agreement Supplementing the 1968 Convention on Road Traffic (European Agreement Supplementing The 1968 Convention On Road Traffic, Done At Geneva On 1 May 1971 (Including the amendments to the European Agreement which entered into force on 28 August 1993 and the amendments which entered into force on 27 January 2001, and the amendments which entered into force on 26 March 2006).
278 NATO SOFA, Art. XII provides that ‘the customs or fiscal authorities of the receiving State may, as a condition of the grant of any customs or fiscal exemption or concession … require such conditions to be observed as they deem necessary to prevent abuse’. NATO SOFA, Art. XIII, imposes the additional obligation on the ‘authorities of a force’, ‘to render all assistance within their power to ensure the payment of duties, taxes and penalties payable by members of the force or civilian component or their dependents’.
279 An example of verbalizing the requirement for exercising stewardship is found in the 1959 Supplementary Agreement for Germany, Art. 66, which allows entitled personnel to import or receive as shipments private motor vehicles and other goods for their personal use or consumption during their deployment to Germany. The German Customs authorities may however, upon suspicion, request the designated authorities of the Sending State to confirm that the goods are intended for personal use, i.e. the Sending State is the holder of the privilege and the privilege comes with an obligation to control and prevent abuse.
281 This is consistent with NATO Civilian Personnel Regulations (defining basic salary and allowances paid to them). Rutsel Silvestre J. Martha, Tax Treatment of International Civilians, holds a list of what may be included in ‘institutional income’ and this includes allowances, grants, rental subsidy, and travel. The common denominator seems to be that these payments are considered salary (or elements of salary) and emoluments paid by the international organization to its international employees in accordance with their contract and/or staff regulations (see particularly 22–7).
283 See e.g. Tax Reimbursement Agreement between the United States and the Permanent Court of Arbitration (2007), Tax Reimbursement Agreement Between the United States of America and the International Renewable Energy Agency (2013), Tax Reimbursement Agreement Between the Government of The United States of America and the United Nations Educational, Scientific and Cultural Organization (2010).
284 Rutsel Silvestre J. Martha (n. 281).
286 See the United Nations Juridical Yearbook, 1973, 168–9. See also Rutsel Silvestre J. Martha (n. 281), 106–7.
287 This enters into a long argument developed by Kunz on ‘national discrimination,’ which is valid for the case of the access to canteens. Kunz argues that ‘National discrimination also leads to inequality of payment of international officials for equal work’. J. L. Kunz ‘Privileges and Immunities of International Organizations’, 41 AJIL 828 (1947). More assertive and prescriptive is the non-discrimination by nationality concept the Spanish Tribunal Supremo judgment [T.S. (Sala 3)] issued on 29 June 2011.
288 Snee, (n. 21) 352 (D-D (51) 23, dated 23 January 1951).
289 Snee, (n. 21) 393 (MS-D (51) 11, dated 19 February 1951).
290 Snee, (n. 21) 381 (MS-D (51) 9, dated 16 February 1951).
291 Snee, (n. 21) 158 (MS-R (51) 12, dated 20 April 1951); it is possible that the French request was founded in differences in the French and English version (Travaux Préparatoires, 464, French comments submitted 7 April 1951: ‘In paragraph 5, the French text differs from the English text in several respects.’ However, this is purely speculation since only the English text is included in the Travaux Préparatoires).
292 Snee, (n. 21) 455 (MS-D (51) 15, dated 3 April 1951).
293 The additional sentence occurs in draft dated 20 February 1951, see Snee, (n. 21) 405 (MS-D (51) 11 (R), dated 20 February 1951).
294 When comparing with the Vienna Convention on diplomatic relations, Art. 34, para. 1 (b) exemptions from customs are granted for ‘[a]rticles for the personal use of a diplomatic agent or members of his family belonging to his household, including articles intended for his establishment.’ The wording here is different—personal use—may be broader, but during the negotiations it was identified that the Receiving State would be allowed to impose reasonable restrictions on quantities of goods imported or limit the periods during which the entitlement could be applied. Eileen Denza, (n. 273) 313, identifies that the ‘sending States and its diplomatic agents thus have no entitlement to import items contrary to the law of the receiving State, even where these items are for the official use of the mission or for personal use of a diplomat’. The UN Convention on privileges and immunities (Art. V, sec 17, subpara. (d)) exempts UN officials from duties on import of ‘furniture and effects’ on their first arrival.