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American Society of International Law




In 1953, the United States ratified the NATO Status of Forces Agreement. The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established a jurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. This result was vital to NATO's operations, for, in democratic host states, popular toleration, if not support, is a political conditio sine qua non for the transnational stationing of foreign military forces. But context is important to understanding and effectively implementing any legal instrument and its jurisdictional regime. The SOFA presumes that the public within NATO states perceives the presence and training exercises of foreign military forces in its midst as serving national security. With the end of the Cold War, the popular perception in many foreign countries of the need for the long-term presence of U.S. forces and the consequent willingness to absorb some of the ineluctable collateral costs appear to have declined. Consequently, the orderly procedure for compensation established by the SOFA may no longer meet the political, as well as the legal, requirements that the SOFA regime serves.

Perhaps no event in recent memory makes this point more clearly than the tragedy inadvertently caused by a U.S. aircraft at Cavalese, Italy, in February 1998. This incident and its aftermath offer a paradigm for rethinking the post-Cold War operation of the SOFA and for understanding how changes in the political context in which it operates may now counsel a more flexible - or, at least, less exclusive - application of its formal terms. These changes may periodically require the development of supplementary strategic compensation procedures for collateral damage caused by foreign military forces stationed abroad. Unquestionably, preserving the legal values of predictability, efficiency, transnational investigative cooperation, and regularity served by the SOFA's compensation scheme remains critical and, from a parochial perspective, perhaps, its exclusive application may be "penny wise." But in the post-Cold War global order, in which popular goodwill in the host state represents, even more than in the past, a condition sine qua non for the continued stationing of U.S. troops in geostrategic allied nations, neglecting its preconditions by focusing solely on the values served by legal formalism could well prove "pound foolish."

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