The handbook of the law of visiting forces

목차 (Table of Contents)

• CONTENTS
• Preface by Lord Robertson of Port Ellen, Secretary General of NATO = ⅴ
• List of Contributors = xxi
• Abbreviations = xxiii
• List of Treaties, international Instruments = xxvii
• PARTⅠ GENERAL FRAMEWORK
• Ⅰ Introduction / Dieter Fleck = 3
• Ⅰ. The Immunity of Foreign Armed Forces = 3
• Ⅱ. Evolving Customary Law? = 6
• Ⅲ. The Relationship Between International Law and National Law of the Receiving State = 7
• Ⅳ. The Design of the Handbook = 8
• Ⅱ Historical Developments Influencing the Present Law of Visiting Forces / Peter Rowe = 11
• Ⅰ. Introduction = 11
• Ⅱ. The Law of Visiting Forces Prior to World War Ⅱ = 12
• Ⅲ. Visiting Forces During World War Ⅱ = 15
• Ⅳ. Key Issues of the Negotiations and of Parliamentary Debates on NATO SOFA = 18
• Ⅴ. The Warsaw Pact Arrangements = 26
• Ⅵ. Challenges Posed by New Types of Military Operations = 27
• Ⅶ. Conclusion = 31
• Ⅲ Multinational Units / Dieter Fleck = 33
• Ⅰ. Present Agreements on Multinational Units = 33
• Ⅱ. The Status of Personnel = 36
• Ⅲ. Command and Control = 39
• Ⅳ. Conclusions = 43
• PARTⅡ COMMENTARIES TO CURRENT SOFA RULES
• Ⅳ Present and Future Challenges for the Status of Forces(ius in praesentia). A Commentary to Applicable Status Law Provisions = 47
• Ⅰ. General Observations / Dieter Fleck = 47
• Ⅳ／1 Members of Visiting Forces, Civilian Components, Dependents / William Thomas Anderson ; Frank Burkhardt = 51
• Ⅰ. Introduction = 51
• Ⅱ. Members of Visiting Forces under the NATO SOFA = 51
• 1. Active Duty = 51
• 2. Reservists = 52
• 3. Former Members of Visiting Forces = 52
• 4. Paramilitary Organizations = 53
• 5. Nationality = 53
• 6. Presence in the Territory of Another Contracting Party in the North Atlantic Treaty Area in Connection with Official Duties = 54
• Ⅲ. Civilian Components under the NATO SOFA = 55
• Ⅳ. Dependents under the NATO SOFA = 57
• 1. General = 57
• 2. Spouse by Marriage = 57
• 3. Other Arrangements = 58
• 4. Children = 58
• 5. Other Relatives = 59
• Ⅴ. Out of Area Deployments = 59
• Ⅳ／2 Respect for the Law of the Receiving State / Rodney Batstone = 61
• Ⅰ. Introduction = 61
• Ⅱ. Application of Receiving State Law = 62
• 1. Private Law = 63
• 2. Administrative and Public Law = 64
• 3. Application of Receiving State Administrative and Approval Procedures = 65
• Ⅲ. Mode of Application of Receiving State Law = 66
• Ⅳ. Areas of Non-Application of Receiving State Law = 68
• Ⅴ. The Function of the Obligation to Respect the Law of the Receiving State = 69
• Ⅳ／3 Entry and Departure of Foreign Military Personnel / Frank Burkhardt = 71
• Ⅳ／4 Vehicles / Paul J. Conderman = 75
• Ⅰ. Driving Licences = 75
• Ⅱ. Vehicle Registration = 78
• 1. Registration of Service Vehicles = 78
• 2. Registration of Privately-Owned Vehicles = 80
• Ⅲ. Insurance = 83
• Ⅳ／5 Uniform / A. P. V. Rogers = 85
• Ⅳ／6 Arms / Eckhard Heth = 87
• Ⅰ. Force Security = 88
• 1. Police Powers Inside Military Establishments = 88
• (a) Preventive Action = 90
• (b) Repressive Action = 90
• (C) Jointly Used Premises = 90
• 2. Police Powers Outside Premises = 91
• 3. Definition of Responsibilities = 92
• Ⅱ. Arms Import Control = 92
• Ⅲ. Use of Force = 93
• 1. General Right to Self-Defence = 93
• 2. Use of Firearms = 94
• Ⅳ. Conclusion = 97
• Ⅳ／7. Jurisdiction / Paid J. Conderman = 99
• Ⅰ. Introduction = 99
• 1. The Law of the Flag is Hoisted and Lowered = 99
• 2. Types of Agreements Affecting Status of Forces = 102
• Ⅱ. Criminal Jurisdiction = 103
• 1. Personnel Covered by Status of Forces Agreements = 103
• (a) Members of a Force = 104
• (b) Members of a Civilian Component = 105
• (c) Dependents = 107
• (d) Contractor Employees = 107
• 2. The Jurisdictional Decision = 108
• (a) Exclusive Jurisdiction = 109
• (b) Concurrent Jurisdiction = 110
• (ⅰ) Waiver of Host Nation Primary Right to Exercise Jurisdiction = 112
• (aa) Recall of Waiver = 114
• (bb) Double Jeopardy-ne bis in idem = 115
• (ⅱ) Waiver of Sending State Primary Jurisdiction = 117
• 3. Arrest, Custody and Related Issues = 117
• (a) Legal Hold over Military Personnel = 119
• (b) Legal Hold as it Pertains to Members of the Civilian Component and Dependents = 119
• (c) 'Extradition' and Return of Military Personnel = 120
• (d) Surrender = 121
• (e) Rights of Accused = 122
• (ⅰ) Interrogation = 122
• (ⅱ) The Right to Counsel and when it Attaches = 123
• (ⅲ) Appeals = 124
• (ⅳ) Execution of Sentences = 124
• (ⅴ) A Sovereignty Sore Spot : The Death Penalty = 125
• Ⅲ. Civil Jurisdiction = 131
• Ⅳ. Administrative Jurisdiction = 133
• 1. Environmental Provisions = 134
• 2. Real Estate = 135
• 3. Health and Safety = 138
• 4. Traffic = 140
• 5. Employment = 144
• 6. Taxes and Customs = 150
• 7. Communications = 153
• Ⅴ. Conclusion = 156
• Ⅳ／8 Claims / Jody M. Prescott = 159
• Ⅰ. Introduction = 159
• Ⅱ. Historical Background = 160
• 1. Prior to 1914 = 160
• 2. World War Ⅰ = 160
• 3. World War Ⅱ = 161
• 4. Post World War Ⅱ = 162
• Ⅲ. The NATO SOFA Claims Regime = 163
• 1. Article Ⅷ = 163
• (a) Intergovernmental Claims = 163
• (b) Official Duty Third-Party Claims = 164
• (c) Ex Gratia Claims = 164
• 2. NATO Headquarters Claims = 165
• 3. US Claims Operations in Germany = 166
• (a) Legal and Executive Authorities = 166
• (b) Claims Processing : Official Duty Claims = 167
• (c) Claims Processing : Ex Gratia(Non-Official Duty) Claims = 168
• Ⅳ. Claims Operations in the Former Yugoslavia = 170
• 1. UN Claims Operations = 170
• (a) Article 51, Model SOFA = 170
• (b) Claims Review Boards in the Former Yugoslavia = 171
• (c) UN Claims Reform Efforts = 172
• 2. IFOR／SFOR Claims Operations : The Legal Bases for Claims Activities in Bosnia-Herzegovina and Croatia = 173
• (a) The Dayton SOFAs and the Balanzino Letter = 174
• (b) The Technical Arrangements = 174
• (c) The Claims Appendices = 175
• (d) The Bosnian Protocols and the Zagreb IFOR Claims Procedures = 176
• 3. IFOR／SFOR Claims Operations : The Claims Offices and Activities = 177
• 4. IFOR／SFOR Claims Issues = 178
• (a) The Efficacy and Competence of the Claims Commissions and Arbitration Tribunals = 178
• (b) Damages to Transportation Infrastructure = 179
• (c) Applicable Receiving State Law with regard to Liability and the Amount of Awards = 179
• 5. US Claims Operations in Bosnia-Herzegovina and Croatia = 180
• Ⅴ. Claims Operations in Hungary = 182
• 1. Soviet Era Claims Operations = 182
• 2. US Claims Operations = 183
• Ⅵ. Conclusion = 186
• Ⅳ／9 Logistic Support / Stuart Addy = 187
• Ⅰ. Introduction = 187
• 1. Historical Overview = 188
• 2. Modern Challenges = 190
• 3. Considered Solutions = 193
• Ⅱ. The Desire to Reduce Costs = 193
• 1. NATO's Experience = 193
• 2. UN Practice = 196
• 3. Proposed Changes = 197
• 4. Legal Concerns = 199
• Ⅲ. Issues Relating to Personnel and Contractor Staff = 201
• 1. Sea Transport = 202
• 2. Land Operations = 203
• 3. Legal Considerations = 204
• Ⅳ. Environmental Pressures = 205
• Ⅴ. Mutual Support = 211
• Ⅵ. Withdrawal from the Theatre = 215
• Ⅶ. Conclusions = 217
• Ⅳ／10 Tax Exemptions / Mark D. Welton = 219
• Ⅰ. Introduction = 219
• Ⅱ. The NATO SOFA = 221
• Ⅲ. Supplementary and Other Agreements = 222
• Ⅳ. Problems of Interpretation and Application = 225
• Ⅳ／11 Customs Exemptions / Mark D. Welton = 231
• Ⅰ. Introduction = 231
• Ⅱ. NATO SOFA Exemptions = 231
• Ⅲ. Supplementary Agreements = 233
• Ⅳ. Problems of Customs Exemptions = 234
• Ⅳ／12 Settlement of Disputes / Baldwin de Vidts = 237
• Ⅰ. Drafting History of Article XVI NATO SOFA = 237
• Ⅱ. Practical Application = 237
• Ⅲ. Scope of the Provision = 238
• Ⅳ. Influence of Article XVI NATO SOFA on the jurisdiction of th ICJ = 238
• Ⅳ／13 Territorial Applicability / Baldwin de Vidts = 241
• Ⅰ. Drafting History of Article XX NATO SOFA = 241
• Ⅱ. Applicability with Respect to Specific Areas = 241
• 1. Azores = 241
• 2. Gander, Newfoundland = 241
• 3. Hawaii and the Aleutian islands = 242
• 4. Greenland = 244
• 5. The Canary and Balearic Islands = 244
• 6. Gibraltar = 245
• 7. New Members' Territory = 245
• 8. New Laender of Germany = 245
• 9. Former Colonies and Dominions = 248
• Ⅲ. Applicability Out Of Area? = 249
• 1. Naval Operations = 249
• 2. Aerial Operations = 251
• 3. Land Operations = 252
• Ⅳ. Conclusion = 253
• Ⅳ／14 Applicability during Crisis or War / Dieter Fleck = 255
• Ⅴ International Military Headquarters = 257
• Ⅴ／1 NATO Military Headquarters / Max S. Johnson = 257
• Ⅰ. Introduction = 257
• Ⅱ. Preliminary Remarks and Background = 258
• Ⅲ. Paris Protocol Provisions : Comments and Practical Applications = 262
• Ⅳ. Conclusion = 319
• Ⅴ／2 Other International Military Headquarters = 321
• Ⅰ. United Nations / Michael Bothe ; Thomas D$$\ddot o$$rschel = 321
• Ⅱ. Regional Treaty Organizations = 322
• 1. European Union / Dieter Fleck ; Max S. Johnson = 322
• (a) Historic Development = 322
• (b) Present Activities = 324
• 2. Commonwealth of Independent States / Bakhtiyar Tuzmukhamedar = 325
• Ⅲ. Headquarters IFOR／SFOR / James A. Burger = 328
• 1. introduction = 328
• 2. Formation of HQ IFOR = 330
• 3. Planning and Operations = 334
• 4. Handling National Differences = 335
• 5. Lessons Learned = 337
• Ⅳ. Headquarters KFOR / Max S. Johnson = 339
• PARTⅢ CASE STUDIES
• Ⅵ The Development of the Law of Stationing Forces in Germany : Five Decades of Multilateral Cooperation / Dieter Fleck = 349
• Ⅰ. Occupation after World War Ⅱ = 350
• Ⅱ. Two German States = 351
• 1. The Federal Republic of Germany = 351
• (a) Ius ad Praesentiam = 351
• (b) Ius in Praesentia = 353
• (c) International Military Headquarters in the Federal Republic of Germany = 354
• (d) NATO Agencies in the Federal Republic of Germany = 354
• 2. The German Democratic Republic = 355
• Ⅲ. The German Unification in 1990 = 355
• 1. The Treaty on German Unity = 355
• 2. The Withdrawal of Russian Forces = 357
• 3. The Revision of the Supplementary Agreement to NATO SOFA = 358
• 4. German Participation in Multinational Units = 359
• 5. The 1995 Visiting Forces Act = 360
• 6. Partnership for Peace and Further Developments = 362
• Ⅳ. Conclusion = 363
• Ⅶ United States Forces in Japan : A Bilateral Experience / Hiroshi Honma ; Dale Sonnenberg ; Donald A. Timm = 365
• Ⅰ. Introduction / Hiroshi Honma ; Dale Sonnenberg ; Donald A. Timm = 365
• Ⅱ. The Development of the Law of Stationing US Forces in Japan / Hiroshima Honma = 369
• 1. Occupation = 369
• 2. The 1946 Constitution of Japan = 370
• 3. The 1951 Security Treaty and the 1952 Administrative Agreement = 371
• 4. Military Control of Separated Okinawa = 373
• 5. The 1960 Security Treaty and the Agreement Regarding the Status of US Forces in Japan = 374
• 6. Return to Japan of the Power to Control over Okinawa = 376
• 7. The 1997 Guidelines for Japan-US Defense Cooperation = 377
• 8. Other Recent Developments and Trends = 378
• Ⅲ. The Agreements Regarding Status of Foreign Forces in Japan / Dale Sonnenberg ; Donald A. Timm = 379
• 1. The United States Forces Japan = 379
• 2. The United Nations Command(UNC) = 389
• 3. Review of Key Provisions = 392
• (a) Symmetry = 392
• (b) Definitions = 392
• (c) Facilities and Areas = 396
• (d) Operations = 397
• (e) Responsibility Sharing = 399
• (d) Local Procurement = 400
• (g) Taxes = 401
• (h) Local Labour = 401
• (i) Foreign Criminal Jurisdiction = 402
• Ⅳ. The Legal Structure in Japan as Related to the Law of Stationing US Forces / Hiroshi Honma = 403
• 1. Divergent Opinions on the Meaning of the Renunciation of War Powers Prescribed in the Constitution = 403
• 2. Different Court Judgments on the Legality of Stationing US Forces in Japan = 404
• 3. The Obligation of US Personnel to Respect the Laws ol Japan = 405
• 4. Certain Gaps between US Requirements and the Laws of Japan Regarding the Use of Bases = 407
• (a) The Extended Power of the US Forces to Use their Bases and its Influence on Japan = 407
• (b) Limitations on the Power of the US Forces to Use heir Bases = 409
• 5. Specific Features = 411
• (a) Lack of Symmetry in the Security System = 411
• (b) Effect of Prior Consultations = 412
• (c) Geographic Limitations in the Security Treaty = 412
• (d) The Application of the Agreement Regarding the status of the US Forces in Situations of Tension = 413
• (e) Defacto Amendment of Criminal Proceedings = 414
• (f) Settlement of Costs = 415
• Ⅴ. Conclusions / Hiroshi Honma ; Dale Sonnenberg ; Donald A. Timm = 416
• Ⅷ Russian Forces in the Commonwealth of Independent States / Bakhtiyar Tuzmukhamedov = 417
• Ⅰ. National Security Powers under the Russian Constitution of 1993 = 418
• Ⅱ. Russia and the CIS : Official Declarations = 428
• Ⅲ. Russian Forces in the CIS : Multilateral and Bilateral Arrangements = 430
• Ⅳ. Peacekeeping in the CIS = 436
• Ⅴ. Conclusions = 440
• Ⅸ Visiting Forces in Korea / Donald A. Timm = 443
• Ⅰ. Introduction = 443
• Ⅱ. The Three Commands = 444
• 1. The United Nations Command(UNC) = 444
• 2. The Republic of Korea-United States Combined Forces Command(CFC) = 446
• 3. The United States Forces Korea(USFK) = 447
• Ⅲ. The Agreements Governing Visiting Forces in the Republic of Korea = 448
• 1. The United States-Republic of Korea SOFA = 448
• (a) Symmetry = 450
• (b) Definitions = 450
• (c) Facilities and Areas = 452
• (d) Local Procurement = 455
• (e) Taxes = 456
• (f) Local Labour = 456
• (g) Criminal Jurisdiction = 457
• 2. The 'Meyer Agreement' for UN Forces in the Republic of Korea = 464
• Ⅳ. Multinational Units in the Republic of Korea : The KATUSA Program = 467
• Ⅴ. Conclusions = 469
• Ⅹ The International Committee of the Red Cross : Legal Status and Headquarters Agreements / Jean Philippe Lavoyer = 471
• Ⅰ. Introduction = 471
• Ⅱ. The Birth of the ICRC and of Humanitarian Law = 471
• Ⅲ. The Mandate of the ICRC = 472
• 1. The Geneva Conventions of 1949 = 473
• (a) International Armed Conflicts = 473
• (b) Internal Armed Conflicts = 473
• 2. The Additional Protocols of 1977 = 473
• 3. The Statutes of the International Red Cross and Red Crescent Movement = 473
• 4. The ICRC as 'Guardian' or 'Custodian' of International Humanitarian Law = 474
• Ⅳ. The Legal Status of the ICRC = 475
• Ⅴ. The ICRC's Headquarters Agreements = 477
• 1. Operational Delegations = 477
• 2. Regional Delegations = 477
• 3. The Legal Nature of Headquarters Agreements = 478
• 4. The Negotiation of Headquarters Agreements = 478
• 5. The Headquarters Agreement with Switzerland = 479
• Ⅵ The Contents of the Headquarters Agreements = 479
• (ⅰ) The Preamble = 480
• (ⅱ) The Legal status of the ICRC = 480
• (ⅲ) Juridical Personality = 480
• (ⅳ) Immunity of the ICRC = 480
• (ⅴ) Inviolability of ICRC Premises, Property and Assets = 480
• (ⅵ) Inviolability of ICRC Archives = 480
• (ⅶ) Communications = 480
• (ⅷ) Financial Resources of the ICRC = 481
• (ⅸ) Exemption from Taxes = 481
• (ⅹ) Exemption from Customs Duties = 481
• (xi) Status of Members of the Delegation = 481
• (xii) Identity Document and Commission = 482
• (xiii) Cooperation with the Host Country = 482
• (xiv) Interpretation = 483
• (xv) Settlement of Disputes by Negotiation = 483
• (xvi) Arbitration = 483
• (xvii) Amendments to the Agreement = 483
• (xviii) Subsidiary Agreements = 483
• (xix) Entry into Force of the Agreement = 483
• (xx) Denunciation = 483
• Ⅶ. International Cooperation Agreements = 483
• Ⅷ. Legal Status of Other Organizations = 484
• 1. Non-Governmental Organizations = 484
• 2. National Red Cross and Red Crescent Societies and their International Federation = 486
• Ⅸ. Conclusion = 486
• XI The UN Peacekeeping Experience / Michael Bothe ; Thomas D$$\ddot o$$rschel = 487
• Ⅰ. Introduction = 487
• Ⅱ. Historical Development of Peacekeeping = 488
• Ⅲ.Various Forms of Peacekeeping in the System of Collective Security = 489
• Ⅳ. Rules of International Law Relating to the Status of Peacekeeping Forces = 490
• 1. The Subjects of Rights and Duties under International Law = 490
• 2. Mission-specific Arrangements = 491
• (a) The Relationship Between the United Nations and the Host State = 491
• (ⅰ) Mandate of the Operation = 491
• (ⅱ) Consent of the Host State = 491
• (ⅲ) Status of Forces Agreement = 492
• (ⅳ) Further Agreements Between the United Nations and the Host State = 494
• (b) Internal Rules of the United Nations = 494
• 3. Legal Sources of a General Nature = 496
• (a) Article 105, paragraph 2 of the United Nations Charter = 496
• (b) The Convention of the Privileges and Immunities of the United Nations = 496
• (c) Convention on the Safety of the United Nations and Associated Personnel = 497
• (d) International Law Relating to the Conduct of Hostilities = 499
• 4. Conclusion = 502
• Ⅴ. The Status of Peacekeeping Forces = 502
• XII Lessons Learned in the Former Republic of Yugoslavia / James A. Burger = 507
• Ⅰ. Introduction = 507
• Ⅱ. The Mandate = 508
• Ⅲ. The Dayton Accords = 508
• Ⅳ. The SOFAs = 510
• Ⅴ. The Rules of Engagement(ROE) = 512
• Ⅵ. Particular Issues under the SOFAs = 513
• 1. Property Agreements = 513
• 2. Criminal and Civil Jurisdiction = 516
• 3. Labour Agreements = 517
• 4. Taxes and Customs = 519
• 5. Claims = 520
• 6. Airports and Ports = 521
• Ⅶ. Particular Issues under the ROE = 521
• Ⅷ. War Crimes = 523
• Ⅸ. The Legal Advisers = 525
• Ⅹ. The KFOR Experience = 526
• XI. Summary of Lessons Learned = 528
• PARTⅣ CONCLUSIONS FOR THE CONDUCT OF MILITARY OPERATIONS
• XIII Visiting Forces in an Operational Context / A. P. V Rogers = 533
• Ⅰ. Introduction = 533
• Ⅱ. The Legal Background = 534
• 1. Deployment of Small Military Missions under UN Auspices = 534
• 2. Deployment of NATO Forces Within the NATO Area = 536
• 3. Deployment of NATO Forces Outside the NATO Area = 537
• 4. Deployment of Forces in States Associated with NATO = 539
• 5. Deployment of Forces Within the Area of Another Regional Organization = 539
• 6. Deployment of Forces Outside the Area of Regional Organizations = 540
• 7. Deployment of UN Peace Support Operations = 541
• 8. Deployment without the Consent of the Receiving State = 542
• 9. Deployment on Peace Support Operations where a State has Collapsed = 543
• 10. Legal Advice = 543
• Ⅲ. Some Possibly Contentious Issues = 544
• 1. Command and Control ; Powers of Command = 544
• 2. Respect for Local Law = 546
• 3. Freedom of Movement = 546
• 4. Use of Force by Members of the Sending State Forces = 546
• 5. Criminal Jurisdiction over Personnel of the Sending State = 550
• 6. Policing = 552
• 7. Claims = 552
• 8. Status of Contractor Personnel and Representatives of Non-Governmental Organizations = 553
• 9. Difficulties of Interpretation and Application = 553
• 10. Matters of Detail = 554
• Ⅳ. Practical Guidelines : Check List for Lawyers Involved in Pre-deployment Negotiations = 554
• ANNEXES
• A Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces(NATO SOFA) = 561
• B 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(PfP SOFA) = 577
• C Agreement on the Status of Missions and Representatives of Third States to the North Atlantic Treaty Organization(Brussels Agreement) = 583
• D Agreement between the Republic of Bosnia and Herzegovina and the North Atlantic Treaty Organization Concerning the Status of NATO and its Personnel(Dayton SOFAs) = 585
• E Military Technical Agreement between the International Security Force('KFOR') and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia ; UNMIK／KFOR Joint Declaration ; UNMIK Regulation 2000／47 On the Status, Privileges and Immunities of KFOR and UNMIK and their Personnel in Kosovo(KFOR Arrangements) = 591
• F Model Status-of-Forces Agreement for Peacekeeping Operations(UN Model SOFA) = 603
• G Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-Keeping Operations(UN Model Contribution Agreement) = 615
• Index = 621