NATO Status Of Forces Agreement Research Articles

Immunities: State Immunity in Employment Disputes and the NATO Status of Forces Agreement: Questioning the Italian Case Law

Immunities: State Immunity in Employment Disputes and the NATO Status of Forces Agreement: Questioning the Italian Case Law

Federalism and the Treaty Power: Breaking the 'Bond(s)' Between Nations: The Treaty Power and Status of Forces Agreements

Federalism principles have long impacted the balance between state and federal authority, but today these principles are impacting the nation’s implementation of treaties regulating armed conflict. In 1920, the Supreme Court decided Missouri v. Holland, 252 U.S. 416 (1920). That seminal decision held that the nation’s treaty power was not limited by the federalism constraints of the Tenth amendment. Few treaties subsequently ratified by the nation symbolize the consequence of this decision more than the NATO Status of Forces Agreement (SOFA), a treaty that operates to divest states of their traditional authority to prosecute violations of their criminal law. Ratified as a self-executing treaty while the Senate debated, and then ultimately defeated, Senator Bricker’s attempts to amend the Constitution to overrule Missouri v. Holland and limit the domestic applicability of treaties, the NATO SOFA represents the importance of the treaty power in realizing critical national policy goals. The jurisprudential foundation for this longstanding supremacy of treaty law over state law is, however, wobbling under the weight of the Supreme Court’s recent decision in Bond v. United States, 134 S. Ct. 2077 (2014). Although that decision in no way considered the impact of SOFAs, it did create a demanding standard for assessing when a treaty preempts traditional state law making authority. This article will explore the debate over the scope of the Constitution’s treaty power seen in the Third Circuit’s and Supreme Court’s consideration of the Bond case, and place the NATO SOFA treaty in its historical context. After evaluating the Bond case itself and its clear indication rule, the article next explores its implications for the NATO SOFA treaty, and consequently, the nation’s treaty commitments. The first Bond decision, Bond v. United States, 131 S.Ct. 2355 (2011), demonstrates that individual citizens will have standing to contest the validity of treaty-implementing legislation (and perhaps self-executing treaties) that circumscribes their behavior in areas traditionally reserved to the states. As a result of Bond, federal courts are now routinely hearing federalism challenges to federal prosecutions, even for violations of statutes grounded in the commerce clause or other enumerated powers far removed from the treaty power. The Supreme Court’s failure to clarify either the continued validity of Missouri v. Holland, or the scope of the constitutional treaty power in Bond, only postpones resolution of this important question. The NATO SOFA, because of its ratification amidst the Bricker Amendments attempts of the 1950s, is an important affirmation by the two political branches of the breadth and critical importance of a robust treaty power. The NATO SOFA, like many SOFAs implicates fundamental foreign policy, war powers, and national security interests of the nation, but also directly intrudes upon areas of traditional state responsibility in our federal system — criminal accountability. Failure to comply with the reciprocal treaty obligations central to the NATO SOFA would leave US military members and their families exposed to retaliatory prosecution overseas, and could affect the integrity of the NATO alliance itself. These treaties potentially represent a direct conflict between a core federal and state function, and will ultimately demand answers to the questions deferred by Bond — when in conflict, which will prevail in our federal system? Given the central concern of the Founders during the drafting of the Constitution over the states’ interference with the fulfillment of national treaty obligations, it is particularly ironic that federalism may still have an impact on such an important function of the federal government in the 21st Century. This article builds on my prior article (with Prof. Geoffrey Corn), Viewing Treaties through a Military Lens: Testing the Limits, and explains how Bond has substantially muddied the waters in relation to self-executing treaties, using the NATO SOFA as an illustration of the risk of an overbroad interpretation of Bond’s adjustment to the Missouri v. Holland precedent.

The European Union Status of Forces Agreement (EU SOFA)

This article offers an overview of the main jurisdictional provisions of the EU Status of Forces Agreement (EU SOFA) of 2003. The article is derived from my more detailed commentary on the EU SOFA published in the Military Law and the Law of War Review. The EU SOFA was signed by the representatives of the governments of the member states of the EU on 17 November 2003. Its purpose is to define the legal position of the military and civilian personnel, as well as the forces and headquarters, deployed by one EU member state in the territory of another member state in the context of the European Security and Defense Policy (ESDP). The EU SOFA makes an important contribution to the development of the EU's crisis management capabilities. By addressing some of the key legal and practical questions raised by the presence of European military and civilian personnel in the territory of other EU member states, the Agreement facilitates their transit and temporary deployment throughout the territory of the EU for the purposes of the ESDP. The EU SOFA is based on the NATO Status of Forces Agreement (NATO) of 1951. As such, it confirms the pre-eminent position of the NATO SOFA as a model for multilateral status of forces agreements governing the legal position of visiting forces deployed among politically equal partners.

NATO Status of Forces Agreement—primary right to exercise jurisdiction—offenses committed in performance of official duty—judicial review of characterization of such offenses—double jeopardy

Public Prosecutor v. Ashby. Judgment No. 161/98.Court of Trento, Italy, July 13, 1998.On February 3, 1998, a U.S. Marine EA-6B aircraft, redeployed at Aviano air base as part of Operation Deliberate Guard in support of the multinational Stabilization Force (SFOR) in Bosnia, was on a low-level training mission over northern Italy when it severed the wires of the cable car at the Cermis ski resort near Cavalese, causing the deaths of twenty people. Because the exercise of criminal action is mandatory under Article 112 of the Italian Constitution, the public prosecutor decided that he had to institute preliminary investigations immediately, with a view to determining whether to prosecute. On July 13, 1998, an Italian judge, in a preliminary hearing, rejected the prosecutor's request that seven U.S. servicemen stand trial for the cable-car accident. The judge found that, under Article VII, paragraph 3(a) (ii) of the NATO Status of Forces Agreement (NATO SOFA), the United States, as the sending state, had the primary right to exercise jurisdiction over the case and that jurisdiction had not been waived. Accordingly, the judge dismissed the case.

Littrell v. United States of America and Another (No 1)

433Jurisdiction — Visiting forces — Civil action for damages sustained as a result of acts of members of visiting force — Plaintiff also a member of visiting force — NATO Status of Forces Agreement, 1951 — Procedure for dealing with claims in respect of damage caused by members of visiting force — Whether conferring right of action against receiving StateTreaties — Effect in municipal law — NATO Status of Forces Agreement, 1951 — Whether incorporated into English law — Interpretation — The law of England

Verzekeringsmaatschappij Het Hollandsche Kruis v. United Kingdom

380Relationship of international law and municipal law — Treaties — Effect in municipal law — NATO Status of Forces Agreement, 1951, Article VIII(5) — Liability for injuries caused by members of foreign armed forces — Whether liability restricted to receiving StateState responsibility — Acts and omissions of State organs and officials — Foreign armed forces visiting country during NATO exercises — NATO Status of Forces Agreement, 1951 — Responsibility of receiving State for acts of foreign servicemenTreaties — Interpretation — Object and purpose — Municipal law as an aid to interpretation — Explanatory memorandum to implementing legislation of treaty — The law of the Netherlands

Belgian State and Ministry for National Defence v. Dahlen and Luchte

239Jurisdiction — Territorial — Concurrent jurisdiction pursuant to treaty — Civil jurisdiction — Claim for damages — NATO Status of Forces Agreement, 1951 — Article VII(3) — Article VIII(5)(a) — Tort committed in receiving State — Right of action against receiving State — Whether excluding jurisdiction of courts of sending StateJurisdiction — Territorial — Foreign armed forces — Civil jurisdiction of receiving State — NATO Status of Forces Agreement, 1951 — Belgian forces stationed in Federal Republic of Germany — “Civilian component” — Tort committed in performance of official duties — Claim for damages — Applicable law — Lex loci delicti — The law of Belgium

GCM v. Public Prosecutor

91Jurisdiction — Territorial — Foreign armed forces — Criminal jurisdiction of receiving State — Concurrent jurisdiction of sending and receiving States — NATO Status of Forces Agreement, 1951, Article VII — Primary right of receiving State to exercise jurisdiction — Custody pending trial — Responsibility of sending State — Annex to Exchange of Notes between Governments of the United States and the Netherlands, 1954, Article 3 — The law of the Netherlands

Motor Vehicles Sales Case

523Jurisdiction — Territorial — Foreign armed forces — Army and Air Force Exchange Services — United States Military Commissary Stores — Commercial trading — Sale of motor vehicles to United States servicemen stationed in Germany — Claim for breach of competition law — Whether such sales must respect provisions of municipal law — NATO Status of Forces Agreement, 1951, Article II — Supplementary Agreement, Article 11(II) — Distinction between procurement and sale of motor vehicles — The law of the Federal Republic of Germany

Rape Prosecution Case

Jurisdiction — Territorial — Foreign armed forces — Criminal jurisdiction of receiving State — Acts of United States serviceman unconnected with official duties — Concurrent jurisdiction of sending and receiving States — NATO Status of Forces Agreement, 1951, Article VII(3) — Waiver of jurisdiction by receiving State — Article VII(8) of Agreement — Principle of ne bis in idem — Applicability — Whether decision to stay proceedings taken by the United States military authorities constitutes a bar to further proceedings in the Federal Republic of Germany — The law of the Federal Republic of Germany

Piha v. Belgium

International organizations — Immunity — Jurisdictional immunity — NATO — Civilian personnel — Employment dispute — Claim for damages following dismissal — Contract specialist not a national of receiving State — Whether courts of receiving State have jurisdiction over claim — NATO Status of Forces Agreement, 1951 — Division of civilian personnel into “civilian component” and locally recruited workers — Whether locally recruited workers employed under private law relationshipState immunity — Jurisdictional immunity — Employment dispute — NATO personnel — Action against Belgium as NATO receiving State — Whether municipal courts have jurisdictions 110over dispute concerning civilian workers — NATO Status of Forces Agreement, 1951 — The law of Belgium

Tijskens v. Belgium

397Relationship of international law and municipal law — Treaties — Effect in municipal law — NATO Status of Forces Agreement, 1951, Article VIII(5) — Liability of receiving State for injuries caused by members of foreign armed forces — Whether conferring right of action upon private individualState responsibility — Acts and omissions of State organs and officials — Foreign armed forces stationed in country under NATO Status of Forces Agreement — Responsibility of receiving State for acts of foreign servicemenTreaties — Effect in municipal law — The law of Belgium

Hafse v. Ferrero, Sanità and INPS

616International organizations — Immunity — Jurisdictional immunity — Contracts of employment — NATO — Headquarters Allied Forces Southern Europe — Nationals of receiving State employed as telephonists — Claim for higher remuneration — Whether Headquarters entitled to immunity — NATO Status of Forces Agreement, 1951 — Paris Agreement between Italy and the Supreme Allied Commander Europe, 1961Relationship of international law and municipal law — Treaties — Effect in national law — Whether conferring rights upon individualsTreaties — Effect in municipal law — The law of Italy

Astrup v. President of the Council of Ministers

Jurisdiction — Territorial — Exceptions — Foreign armed forces — Criminal jurisdiction of receiving State — Acts and omissions of foreign serviceman unconnected with official duties — Whether rule of customary international law that sending State has jurisdiction in such cases — NATO Status of Forces Agreement, 1951, Article VII(3) — Waiver of jurisdictions by receiving State — Whether constitutional — The law of Italy

United States v. Gereschi

State immunity — Jurisdictional immunity — Visiting forces — NATO Status of Forces Agreement, 1951 — National of receiving State employed as administrator by foreign armed forces — Whether employing State entitled to immunity in action under contract of employment — Whether 1951 Agreement or general rules of international law applicableTreaties — Interpretation — Object and purpose — The law of Italy

HAFSE v. Sindicato FILTAT-CISL Vicenza

International organizations — Immunity — Jurisdictional immunity — Employees — Action by trade union regarding trade union activities of employees — Whether organization required to permit trade union activities amongst employees — Whether local courts have jurisdiction — NATO — Headquarters Allied Forces Southern Europe — NATO Status of Forces Agreement, 1951 — Protocol on Status of International Military Headquarters, 1952 — Paris Agreement between Italy and Supreme Allied Commander Europe, 1961 — The law of Italy

Bruno v. United States

316 Sovereign immunity — Foreign States — foreign armed forces stationed in Italy under NATO Treaty — National of receiving State employed as fireman — Contract of employment — Termination of — Claim for back pay — Whether foreign. State entitled to jurisdictional immunity — Whether general principles of international law applicable — Prevalence of treaty rules — NATO Status of Forces Agreement, 1951 — Division of civilian personnel into “civilian component” and local workers — Whether local workers employed under private law relationship — The law of Italy

Agent Judiciaire du Trésor Public v. Caisse Primaire de Sécurité Sociale de la Charente-Maritime and Range

Jurisdiction — In general — Territorial — Exemptions from and Restrictions upon — Foreign armed forces — NATO Status of Forces Agreement, 1951, Article VIII (5) — Provision that claims against members of NATO forces bedealtwith by receiving State — Whether creating employer/employee relationship between receiving State and members of NATO forces stationed in its territory — The law of France

Agent Judiciaire du Trésor Public v. Sabbag and “The Fortune” Co

502Jurisdiction — In general — Territorial — Exemptions from and restrictions upon — Foreign armed forces — NATO Status of Forces Agreement, 1951, Article VIII (5) — Provision that claims against members of NATO forces be dealt with by receiving State in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces — Whether receiving State subrogated to rights of victim — The law of France

Fortune Insurance Company v. État Français and Others

462 International organization and administration — North Atlantic Treaty Organization — NATO Status of Forces Agreement, 1951 (Article 8 (5)) — Claims for compensation arising out of acts or omissions of members of NATO forces — Provision for settlement in accordance with laws of receiving State with respect to claims against armed forces of receiving State — Claims arising out of acts of American forces stationed in France — Liability of French State — Whether limited to liability based on fault — The law of France.