By Mr. Zdeněk Hýbl, Legal Advisor, JCBRN Defence COE, CZE1
“The extract of this article was published at the December 2020 issue of the “NATO Legal…matters!” newsletter, issued by Allied Command Transformation, Office of the Legal Advisor”.
Crisis management belongs among the core tasks and principles of North Atlantic Treaty Organization (NATO) together with collective defence and cooperative security.2 NATO recognizes that crises beyond NATO’s borders, and we can argue that crises within the NATO borders as well, can pose a direct threat to the security of the Alliance. Lessons learned from NATO operations in Afghanistan and the Western Balkans, make it clear that a comprehensive political, civilian, and military approach is necessary for effective crisis management.3
One of the crises, which may have significant impact on Alliance security, can be caused by a large-scale chemical, biological, radiological and nuclear (CBRN) incident. This incident can result from an intentional release, as might be the case of terrorism, or can be unintentional. NATO understands the significance of the potential threat and responded to it in 2009 by adopting NATO’s Comprehensive, Strategic-Level Policy for Preventing the Proliferation of Weapons of Mass Destruction (WMD) and Defending Against CBRN Threats. Since than several documents were embraced, including but not limited to NATO’s Strategic Concept. In February 2019, NATO Defence Ministers endorsed the non-binding guidelines4 to enhance civil-military cooperation to deal with the consequences of large-scale CBRN incidents. The focus of the guidelines is primarily upon a national level. The aim of the article is to address this topic not only from a national point of view but foremostly from a NATO-level. The United Nations (UN) and European Union (EU) will be mentioned as well, nevertheless the focus belongs to NATO.
To tackle NATO involvement completely would not be possible without dealing with privileges and immunities NATO possess as an international organization. Additionally, privileges and immunities of NATO staff and military and civilian personnel of NATO member States should be addressed as well.
Dealing with any CBRN incident is a complex issue. It gets even more complex when the incident reaches out to another country or even countries. In such scenario, different sort of entities will attempt to cooperate to solve the issue. If the incident is so severe it may easily exhaust the capabilities and capacities both civilian and military of the affected country or countries. The international cooperation may come into play with all challenges linked to international disaster response. Therefore, the basic principles of disaster management and NATO’s involvement in disaster management should be addressed by this article as well.
There are a few questions that deserve an answer. The aim is not to provide exhaustive answers for all of them but to generate discussion among the key stakeholders. Moreover, answers to some of the questions might be already available, nevertheless the article might provide other perspective and generate further on discussion.
The question to be addressed are as follows:
- NATO’s ROLE IN DISASTER RESPONSE
- CROSS-BORDER AUTHORITY (invitation)
- LEGAL BASIS (to stay and operate):
- NATO troops – NATO status of forces agreement (SOFA) (is it enough? – NO – cooperation with civilian capabilities is not covered)
- First Responders – bilateral and multilateral agreements (are they in place? Are they enough?)
- ABILITY TO RESPOND AND LIABILITIES AND CLAIMS:
- Privileges & immunities for:
- Organization (immunity from legal process)
- Staff (ability to execute the job (doctors, police, firefighters, soldiers) together with authorization to use own equipment and medication/drugs)
- NATO – EU COOPERATION / INTERACTION5
- NATO’s ROLE IN DISASTER RESPONSE
The first question to answer, although partially covered by the first paragraphs of this article is whether NATO, as a major political – military organization, has any role in disaster response? NATO obviously plays an important role on this field, although it is not a major humanitarian actor and has no aspiration to become one. Nevertheless, NATO’s involvement in disaster response and humanitarian operations goes back almost 60 years when in 1953 the Alliance assisted Belgium and the Netherlands6. Both countries were hit by floods. Since than NATO has provided assistance to many countries inside or outside NATO’s borders.7
NATO Strategic Concept8 provides that the Alliance must and will continue fulfilling three essential core tasks: a) collective defence, b) crisis management and c) cooperative security. In terms of crisis management NATO has a unique and robust set of political and military capabilities to address the full spectrum of crises – before, during and after conflicts. NATO will actively employ an appropriate mix of those tool to help manage developing crisis, to stop ongoing conflicts and to help consolidate stability in post-conflict situations to ensure Alliance security.9
Another high-level NATO document addressing this issue is NATO’s Comprehensive, Strategic-Level Policy for Preventing the Proliferation of WMD.10 In its mission statement the Policy states that NATO will work actively to prevent the proliferation of WMD by State and non-State actors, to protect the Alliance from WMD threats should prevention fail, and be prepared for recovery efforts should the Alliance suffer a WMD attack or CBRN event.
CBRN threats encompass a wide scope of events, including but not limited to naturally occurring disasters, accidental incidents as well as deliberate incidents.11 Although the United Nations via United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) would act as the focal point for the coordination of disaster relief, the primary responsibility to react on a CBRN incident belongs to the affected nation and its first responders. First responders would be the first one to tackle the situation and provide information to the adequate authorities.
In case of a large-scale CBRN incident, whether intentional or unintentional, first responders together with other civilian capabilities might soon reach its limits. In case national civilian response capabilities are overwhelmed, the national military capabilities are used. Nevertheless, those military CBRN defence capabilities might be limited, if there are any at all, or exhausted as well. The international support might be sought as we can see from numerous cases in the recent history.12
International coordination might be sought also in situations that are not, technically, and doctrinally speaking, CBRN incidents. This was clearly demonstrated during the SARS-CoV-2 pandemic (or ‘COVID-19‘). The pandemic and NATO’s response to it will be elaborated later in this article, although the aspiration is not to provide answers to all questions related to this topic.
For the time being it can be said that SARS-CoV-2 had tremendous impact on functioning of states and international organizations. Things that seemed unlikely or even impossible, such as closure of borders of states worldwide, including but not limited to the EU became part of our lives, at least for certain period. Some borders were closed by individual nations, with exemptions for certain category of personnel.13 However, no overall coordination during the pandemic was fully executed. Some nations adopted laws that enable cross-border crossing for forces, including Allied forces14 without sending those people to quarantine. Other nations list categories of people allowed to cross the border without explicitly stating whether those people would be required to stay in quarantine.
Reaction to the pandemic, firstly by states and consequently by the EU, was severe. After the border of some EU states were closed, the President of the European Commission criticized some EU countries for border restrictions as well as for limitations for export of medical supplies and material.15 After the situation in Europe got worse the EU Commission proposed to close external borders of the EU, for at least a period of 30 days.16 On 17 March 2020, all Schengen area member states approved the plan proposed by the EU Commission. Consequently, the external borders of the territory were closed for 30 days. This was quite unprecedented decision, which showed how the virus spread can have direct impact on day-to-day live in whole Europe.
The crisis clearly demonstrated that nations’ first reaction was to act alone, securing their national interest, predominantly lives of their own citizens. But what if the situation was not caused by naturally develop virus? What if this would be action of an adversary state(s) or a terrorist attack. Would be the reaction of the affected nations any different?
From the cross-border cooperation perspective there is a difference what was the cause of the incident. Whether the situation is caused by intentional or unintentional release of chemical, biological or radiological agents. It is obvious that chemical or radiological/nuclear incident would require quick and orchestrated reaction not only from the affected state but its neighbours as well. On the other hand, a biological incident usually takes time to evolve. This can be demonstrated on the COVID-19 crisis as nations were aware about the situation well in advance before the COVID-19 stroke in Europe and America. Nations did have enough time to prepare themselves, their heath and rescue systems and secure necessary equipment.
When dealing with crisis situations the cooperation between different shareholders is essential. One of the most visible examples during the COVID-19 pandemic was cooperation between NATO and the United Nation’s Office for Coordination of Humanitarian Affairs (UN OCHA). On 5 May 2020 Euro-Atlantic Disaster Response Coordination Centre (EADRCC) received “COVID-19 Pandemic Military and Civil Defence Assets Request No. 1” from the UN OCHA and already on 13 May 2020, Allies approved forwarding the request to Supreme Headquarters Allied Powers Europe (SHAPE) for action. Consequently, SHAPE coordinated those actions necessary to facilitate the movement of material and personnel, as requested, and provided on o voluntary basis.17
The EADRCC role is to coordinate assistance provided by other stakeholders, nations, or international organizations. Nevertheless, this support does not involve deploying military or civilian personnel. It has to be said that utilizing forces within another country, especially if they are of military nature, arises more legal issues and to solve those can be time-consuming process. And from the legal perspective, one of the most critical areas for deploying any forces or civilian components is area of privileges and immunities. This will be dealt in depth later in this article, nevertheless it is worth to demonstrate how important having the appropriate legal arrangements in place is important prior commencement of any disaster relief operation. The Report to the Ministerial Council on Strengthening the Legal Framework of the Organization for Security and Cooperation in Europe (OSCE) in 2014 states that “The consequences of that lack of clarity became sharply manifest during the involvement of the OSCE in the events occurring in Ukraine. […] By applying urgent efforts, the appropriate legal status, privileges and immunities to enable successful implementation of the mandate and the protection of the OSCE officials deployed, were concluded in record time. Nonetheless, a full 10 weeks passed before the legal arrangements were in place and in force.”18
Also, there are numeral international and regional agreements, bilateral agreements, and ad hoc arrangements. However, the question remains how, if at all, those agreements address the status of forces deployed on relief operation.
- CROSS-BORDER AUTHORITY
The second question to be addressed is the cross-border authority. The accordance with the international law the states shall respect sovereign equality of each other.19 Therefore, the invitation remains the ultimate legal background for admittance of first responders or troops. This is valid also for NATO member states’ troops as the consent of the receiving state is embodied into the preamble of NATO SOFA.20
The cross-border authorization shall not encompass personnel only but also equipment, including but not limited to vehicles and goods. Domestic regulations on the passage or enter of the equipment might have direct influence on the relief operation. For example, one year after the tsunami struck Indonesia, over four hundred containers of goods were still awaiting customs clearance in Jakarta and Medan.21
In case of emergency, such as COVID-19 pandemic, NATO through its EADRCC, was able to react swiftly. Already on 23 March 2020, the EADRCC has received a request for international assistance from the Armed Forces of Ukraine in their response to the global pandemic of the coronavirus COVID-19. In order to prevent the spread of the virus in the military units of the Armed Forces of Ukraine, the EADRCC asks international partners to provide assistance to the Ministry of Defence of Ukraine in supplying humanitarian assistance.22 On 30 March 2020, a team of experts from the NATO Support and Procurement Agency (NSPA), working closely with the Luxembourg Army, led the construction of multiple field hospital tents, equipping Centre Hospitalier du Luxembourg (CHL) with 200 additional beds to treat COVID-19 patients. “These additional facilities will enable us to considerably adapt the triage area for patients with an adjacent zone equipped with laboratory tests and an X-ray area provided by the Luxembourg government”, said a CHL representative. The CHL is also treating critical COVID-19 patients transferred from France.23 And of course there are numerous other examples.
It might be valuable to describe how the EADRCC works. The table24 below can be used as the starting point.
The EADRCC upon request for assistance from a stricken country and/or the UN OCHA will be responsible for25:
- Informing the Secretary General and, through him, the Euro-Atlantic Partnership Council (EAPC) for political guidance as appropriate, as well as the Civil Emergency Planning Committee (CEPC) in EAPC format and the NATO Military Authorities (NMAs), of such requests for disaster assistance. In addition, the Secretary General will be informed of any special political and operational implications;
- Coordinating, in close consultation with the UN OCHA, the response of EAPC Countries to a disaster occurring within the EAPC geographical area;
- Acting as the focal point for information-sharing on disaster assistance requests among EAPC member countries; and
- Maintaining close liaison with both UN OCHA and the European Union as well as other organizations involved in international disaster response.
As can be seen the EADRCC has several functions. The EADRCC serves as focal point for information sharing, responds to requests for assistance and serves as the point of entry for UN into NATO.26
In accordance with the declaration by NATO Foreign Ministers issued following their meeting of 2 April 2020, Allies are supporting each other – including with medical professionals, hospital beds, vital medical equipment, and best practices and ideas on how to fight this deadly disease. “We are airlifting critical medical supplies from across the globe, providing medical personnel, essential materials, and vital equipment from military and civilian sources, and harnessing our medical, scientific, and technological knowledge and resources to help deliver innovative responses”.27
The current COVID-19 pandemic is a time when resilience28 is being tested. As part of the Alliance’s work to strengthen resilience, NATO and Allies have been working continuously to enhance preparedness across the whole of government, including in the health sector. In support of Allies, NATO’s primary body that addresses preparedness and resilience – the Civil Emergency Planning Committee – is monitoring and assessing the impact of the crisis and facilitates an exchange of information and best practices among Allies on an ongoing basis.29
Other organizations, such the OSCE focused, at least at the beginning of pandemic, more on internal measures, such as undertaking preventive measure, preparing contingency plans, and monitoring the situation regarding the virus outbreak.30
- LEGAL BASIS
- NATO Legal Framework
In case of NATO’s legal framework, the main legal document to look at is the North Atlantic Treaty, the document that remained unchanged ever since its creation. It is thus important to underline that all NATO’s activities are conducted in accordance with, and therefore justified by the Treaty’s principles. The preamble of the Treaty provides that the Parties to this Treaty are determined to safeguard the freedom, common heritage and civilization of their peoples, founded on the principles of democracy, individual liberty and rule of law31. They seek to promote stability and well-being in the North Atlantic area. Those activities are crucial components and should also apply to the efforts, which this article seeks to promote. Any CBRN incident, whether unintentional or even more being intentional, has the potential to threaten the freedom, heritage, civilization, stability and well-being of any NATO member state.
In the Treaty itself, apart from preamble, three articles may be of our interest, especially in case of intentional release, as may be applicable during terrorist attack:
- Article 3 – establish that the Parties separately and jointly will maintain and develop their individual and collective capacity to resist armed attack;
- Article 4 – provides that the Parties will consult together whenever the territorial integrity, political independence or security of any of the Parties is threatened;
- Article 5 which is beyond any doubt the most famous article and the cornerstone of NATO providing that whenever any of the 29 NATO member states are being attacked, the entire Alliance will exercise the principle of collective self-defence until Security Council of the United Nations takes the measures to restore and maintain international peace and security.
Another crucial document is NATO SOFA, signed in 1951. This Agreement regulates the status of forces and their civilian components, whenever they are deployed on the territory of a NATO member state, either for short-term or long-term deployment. Friendly admittance of troops requires the consent of the sovereign host state. Depending on the laws and practice of the state receiving the visiting forces, the consent can be formal or informal, and it can be announced as an explicit consent or invitation to conduct or participate in specific activities, or as a license to perform defined actions. It must be highlighted that nothing in NATO legal framework confers any rights to Allied states to deploy forces to the territory of another ally without the consent of that State. The consent of the affected state or states will be required even in the case of any large-scale CBRN incident.
As a part of NATO legal framework, we should not forget NATO’s 2010 Strategic Concept, which is stressing the importance of crisis management and promotion of international security through cooperation, while not losing out of sight its traditional functions.
NATO Policy on Cooperation for Disaster Assistance in Peacetime was approved by the North Atlantic Council (NAC) on 9 May 1995.32 The Policy established that if requested to do so by NATO, a partner, a stricken country or a relevant international organization, NATO should be ready to employ cooperation procedures established by the policy, also in case of disasters outside NATO’s boundaries.
NATO-led military activities, including military assistance provided by NATO-led forces in disaster relief and consequence management planning will be covered, to certain extend, by Allied Joint Doctrine for Host Nation Support - AJP-4.5(B)33. This doctrine provides host nation support (HNS) guidance to those involved in support planning for NATO military activities, where Allied Forces are planned to be located on, operating in or transiting through the territory of a host nation (HN). Partnership for Peace (PfP) nations, Mediterranean Dialogue (MD), Istanbul Cooperation Initiative (ICI) and other nations participating in NATO partnership and cooperation programmes are invited to follow this guidance when acting as a HN or sending nation (SN) in a NATO-led operation or exercise. The dynamic nature of HNS planning and implementation necessitates that the doctrine and procedures can be adapted to any military activity and expanded with specific logistic arrangements/Memoranda of Understanding (MOU) as required. This doctrine refers to the NATO or PfP SOFA and does not apply to civilian relief personnel except as attached to military forces, or in any case in the absence of a SOFA.
- EU Legal Framework
EU Member States retain the primary responsibility for the management of crises within their territory. However, complex threats such as CBRN large-scale incidents or terrorist attacks may overwhelm national capacities, requiring the involvement of the EU and of other member states. CBRN large-scale incident may fall within the scope of the mutual assistance or defence as envisaged by the Treaty on European Union (Article 42(7) – “If a member state is the victim of armed aggression on its territory, the other member states shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain member states. Commitments and cooperation in this area shall be consistent with commitments under NATO, which, for those states which are members of it, remains the foundation of their collective defence and the forum for its implementation”.) and solidarity clauses introduced by the Treaty on the Functioning of the EU (Art. 222 “solidarity clause” – “The Union and its member states shall act jointly in a spirit of solidarity of a member state is the object of a terrorist attack or the victim of a natural or man-made disaster.”).
The Common Security and Defence Policy (CDSP) is framed by the Treaty on the European Union (TEU) and is an integral part of the EU common foreign and security policy. It provides the EU with an operational capacity drawing on civilian and military assets and as such is a part of comprehensive crisis management approach.
The overall objective of the EU Civil Protection Mechanism is to strengthen cooperation between the EU member states and six participating states35 in the field of civil protection, with a view to improving prevention, preparedness, and response to disasters. When the scale of an emergency overwhelms the response capabilities of a country, it can request assistance via the Mechanism36. Through the Mechanism, the European Commission plays a key role in coordinating the response to disasters in Europe and beyond and contributes to at least 75% of the transport and/or operational costs of deployments.
- Bilateral and multi-lateral agreements
The overwhelming bulk of existing international disaster response law instruments are bilateral agreement between states and between states and international humanitarian organizations.37 The example of such bilateral agreement can be Treaty between Germany and the Czech Republic.38 The Treaty lays down the basic conditions for the provision of voluntary assistance in the event of disaster or serious accidents. In accordance with the Treaty provisions, any assistance will be provided based on a request of assistance. Article 5 provides details on border crossing and presence on the territory of either contracting state. Generally, all border crossing formalities should be limited to the absolute minimum. Moreover, members of an emergency team may cross the border of the requesting State and remain on its territory without travel documents. Emergency team members and individual skilled personnel shall not require a work permit for their activities in rendering assistance on the territory of the requesting State and are also entitled to wear a uniform.
Bilateral agreements would cover cooperation of two states. But what about if more than two states are affected? The multinational coordination would be required. In such a case, organization like NATO and EU can play significant role not only in coordination of help but also in coordination of direct response to an incident. As stated in the study requested by the Subcommittee on Security and Defence (SEDE), not all CBRN scenarios would involve the systematic use of military means at European level, as in many cases the situation would not overwhelm national response capacities and, should the scale and severity require their involvement, civilian European emergency response means.39
- ABILITY TO RESPOND AND LIABILITIES AND CLAIMS
Going through above-mentioned bilateral agreement between the Czech Republic and Germany and compering its provisions with terms of Oslo Guidelines40 one of the key elements is privileges and immunities of operation/organization and its personnel. The importance of this area was recognized by NATO in a document prepared by NATO Civil Emergency Planning Committee, Civil Protection Group. The document provides that among the problem that a mission can encounter one of the most significant are potential liability issues, which can lead to significant financial costs, delays in deployment and even diplomatic tensions between states.41
The privileges and immunities are paramount for successful functioning of an international organizations, including but not limited to NATO. The importance of the privileges and immunities rise significantly in the time of crises. This can be demonstrated on the OSCE, where the lack of lack of privileges and immunities had direct impact during the OSCE involvement in Ukraine in 201442.
Obstacles to entry and operations together with regulations on the passage of materiel and personnel plus various custom delays can serve as another example where the lack of privileges and immunities can hamper the success of the mission. For example, one year after the tsunami struck Indonesia, over four hundred containers of relief goods were still awaiting customs clearance in Jakarta and Medan.43
Other crucial area is exposing an organization or its staff to the risk of civil and even criminal liabilities. As mention above, this risk has been recognized by not only by NATO but also by other international organizations, such as United Nations and EU.
The above-mentioned examples serve as a proof that privileges and immunities for NATO is not just a slogan. To work efficiently, as was demonstrated in the OSCE’s examples, the protection of the Alliance and its staff is crucial for successful accomplishment of the mission or tasks given.44
NATO possesses juridical personality45 and enjoys privileges and immunities. The Agreement on the status of the North Atlantic Treaty Organization, National Representatives and International Staff, signed in Ottawa 1951 (Ottawa Agreement) guarantees inviolability of the premises of NATO and protection of archives as well as fiscal privileges, such as exemption from all direct taxes and custom duties. Similarly, to the Convention on the Privileges and Immunities of the UN, the Ottawa Agreement regulates the privileges and immunities of the Representatives of Member States and the International Staff and Experts on Mission for the Organization.46
Although Article 2 of the Ottawa Agreement exclude applicability of the Agreement either to any military headquarters established in pursuance of the North Atlantic Treaty or to any other military bodies. Therefore, it can be argued that two Supreme Headquarters (Allied Command Operations and Supreme Allied Command Transformation) are not covered by the provisions of the Ottawa Agreement. This would inevitably cause issues during any operations run by the headquarters as privileges and immunities provided for by the NATO SOFA47 and Paris Protocol48 might not be sufficient to protect them from different legal actions potentially held against the headquarter and their subordinated commands. Specifically, the lack of immunity from legal process, if applicable, can have significant impact on the ability of the organization to fulfil its mission. Therefore, more thorough look to the applicability of Article 2 of the Agreement should be executed. The Travaux Preparatoires of the Paris Protocol provides that “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 questions not covered by that Agreement - and for those questions only – it is possible to refer to the Agreement signed in Ottawa on 20 September 1951, concerning the status of NATO civilian agencies”.49 For the further reference and in accordance with Snee, this statement is called “paragraph 26”.
Having in mind that NATO itself consists of three different international organization (International Staff, International Military Staff and Agencies being one and SHAPE and HQ SACT as the second and the third) under the umbrella of the North Atlantic Treaty then we have to put three core agreements on the same level. Those three agreements would be Ottawa Agreement, NATO SOFA and Paris Protocol.
Putting those three agreements at the same hierarchical level means, in accordance with the interpretation of Vienna Convention50 that those treaties must be used and interpreted together.
To conclude, “paragraph 26” of NATO document D-D(52)2 of 3 January 1952 on the ‘Protocol on the Status of Allied Headquarters’ confirms that all NATO bodies count on the same privileges and immunities and that the Paris Protocol is only complete, from a conventional standpoint, when reference is made to both the NATO SOFA and the Ottawa Agreement. In February 2018, the Kaiserslautern Labour Court in the Klag case confirmed the recognition of the conventional immunity from jurisdiction of the Supreme Headquarters per the travaux preparatoires.51
Privileges and immunities serve as a tool for an international organization to exercise its tasks and duties. This become crucial when dealing with a crisis’s situation such as, but not limited, to any large scale CBRN incident. Any organization, and NATO specifically, should be able to react swiftly without any fear and thoughts on its possible responsibilities.52
Another interesting part is privileges and immunities for staff. As mentioned, lack of diplomatic or inter-governmental privileges and immunities may lead to risk the risk of civil or criminal liability.53
Moreover, questions like:
- Could a doctor or nurse work on the territory of other state?
- Could he/she face legal claims?
- What if the doctor or nurse is part of military?
- Under what conditions medical equipment/military equipment can be used?
Should be answered prior any deployment takes place. As mentioned above, in case of a chemical or radiological incident, the deployment should be done in hours, days latest. There is not much time and space for negotiation when the situation required swift and coordinated action. Lack of clarity can lead to significant financial costs, delays in deployment and diplomatic tensions between states.54
Members of a force and its civilian component would be covered, when in the territory of another Contracting Party in the North Atlantic Area in connexion with their official duties by provisions of NATO SOFA.55 The term “official duties” covers not only NATO duty but covers also units associated with common defence under the North Atlantic Treaty.
The existing legal framework does not allow for a timely deployment of international forces beyond borders, on the entire Euro-Atlantic territory. While there is a legal framework for the deployment of foreign NATO-related forces on the territory of member States, it does not regulate the specifications and still requires extended negotiations between the sending and receiving State. Moreover, the conditions under which troops should be send are not defined. Moreover, it is questionable if the process of deploying would be fast enough to respond effectively to a large scale CBRN incident. While there are some agreements in place, mostly regional partnership between neighbouring countries, there is no agreement, which would allow for a swift response on a NATO-level.56
The solution can be an overarching agreement like the one prepared on UN level57 or standardized existing bilateral or multilateral agreements under NATO’s umbrella. The inspiration can be found in the Oslo Guidelines on the Use of Foreign Military and Civil Defence, which also provides the model agreement covering the status of military and civil defence assets.58
- NATO – EU Cooperation / Interaction
NATO’s Comprehensive, Strategic-Level Policy for Preventing the Proliferation of the WMD and Defending Against CBRN Threats59 provides that planning for CBRN consequence management is a multi-dimensional effort, requiring coordination within the Alliance at all levels, as well as with civilian emergency planning authorities and other international organizations, as appropriate. It also states that NATO has considerable CBRN defence capabilities to offer to Allies’ and partners’ first responders and it also serves as a forum where planning arrangements for such eventualities can be coordinated among countries.
The EU CBRN Action Plan also stresses the need for close cooperation with key partners and organizations. However, some European member states made it clear that the EU’s own capacity-building initiatives should not compete with those of NATO. Therefore, Policy Department for External Relations in its paper “EU preparedness against CBRN weapons” stresses out that taking into account political considerations, available resources but also challenges related to CBRN threats, it is thus crucial to develop closer cooperation with NATO and avoid duplication.
In 2016, during the NATO summit, the EU and NATO signed a joint declaration on increasing practical cooperation, including but not limited to actions that will develop coherent, complementary and interoperable defence capabilities of EU Member States and NATO Allies, as well as multilateral projects.
The EU and NATO signed a new joint declaration ahead of the NATO summit in 2018. It reaffirms the importance of a continued cooperation in the context of multiple and evolving challenges coming from the East and the South and emphasizes the significance of the implementation of the common actions. Strengthening resilience to CBRN related risks is one of the four areas where swift and demonstrable progress will be sought.
The existing legal framework does not provide adequate protection for the first responders and consequently members of a force and its civilian component in cases of crisis management and disaster response, hence is cases of cross-border cooperation among states. Although, there were several attempts to draft, negotiate and adapt comprehensive treaties on disaster relief, such as a “Draft Convention on Expediting the Delivery of Emergency Assistance” prepared by the UN60, those attempts failed and the Convention has never been adopted.
There are several global treaties as well as regional laws and agreements, but majority of cooperation is covered by bilateral or multilateral agreements, which might prove insufficient in case of a large-scale incident or crisis, such as COVID-19 pandemic. Speaking about NATO, NATO SOFA provides basis for deployment of a force and its civilian components. Nevertheless, it is questionable if the process of deploying would be fast enough to respond effectively to a CBRN incident. While there are regional partnerships between countries in case of emergencies, there is no agreement, which would allow for a swift response on a NATO-level.61
The most effective solution is creating an overarching legal framework. However, negotiating and concluding one may consume considerable amounts of resources and time. Moreover, as history teach us, developing and concluding a comprehensive treaty is challenging.
Therefore, it is advised to use already existing agreements and build upon those to create a coherent form of legal framework among countries. The aim is to standardized existing agreements and therefore slowly allow NATO to build up a structured system of agreements, which consider NATO’s role within consequence management operations.
1Zdeněk Hýbl works as Legal Advisor for the JCBRN Defence Centre of Excellence (JCBRN Defence COE), Vyškov, Czech Republic. The views expressed in this article are solely those of author and may not represent the views of NATO or any of its agencies/bodies or the JCBRN Defence COE or its Sponsoring Nations or Contributing Partner.
2Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, adopted by Heads of State and Government at the NATO Summit in Lisbon 19 – 20 November 2010.
4Non-binding Guidelines for enhanced civil-military cooperation to deal with the consequences of large-scale CBRN events associated with terrorist attacks.
5NATO terminology defines NATO – EU ‚Interaction‘ whilst the EU uses the term 'Cooperation'. This example shows that there is still a gap in comon NATO - EU terminology. In this article the more frequently used term 'ccoperation' is used.
6Cooperation in Natural Disaster Management and Prevention Coordination between States and between Military and Civilian Actors, Case Study: NATO’s Involvement in Pakistan Earthquake Relied in 2005, Presented by G. W. Bretschneider, 22nd OSCE Economic and Environmental Forum “Responding to environmental challenges with a view to promoting cooperation and security in the OSCE area”, First Preparatory Meeting, Vienna, 27-28 January 2014, Session IV.
7Assistance provided to the United States in 2005 after Katrina hurricane; Assistance provided to Pakistan in 2005 after the devastating earthquake; etc.
8Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, adopted by Heads of State and Government at the NATO Summit Lisbon, 19 – 20 November 2010.
9Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, adopted by Heads of State and Government at the NATO Summit Lisbon, 19 – 20 November 2010, page 7 -8
10NATO’s Comprehensive, Strategic-Level Policy for Preventing the Proliferation of Weapons of Mass Destruction (WMD) and Defending Against Chemical, Biological, Radiological and Nuclear (CBRN) Threats, released on 1 September 2009; available at https://www.nato.int/cps/en/natolive/official_texts_57218.htm.
11EU preparedness against CBRN weapons, study requested by the subcommittee SEDE, Policy Department for External Relations, Directorate General for External Policies of the Union, PE 603.875 – January 2019, page 8
12The Law of International Disaster Response: Overview and Ramifications for Military Actors, David Fisher, International Law Studies – Volume 83, page 294- "[…] over the last thirty-five years, there have been over fourteen thousand non-conflict disasters worldwide, resulting in more than 2.3 million deaths and affecting an astonishing 5.8 billion persons."
13https://www.mvcr.cz/mvcren/article/coronavirus-information-of-moi.aspx, visited on 25 May 2020
14Such as Poland
15https://www.novinky.cz/zahranicni/koronavirus/clanek/sefka-evropske-komise-zpochybnuje-ucinnost-uzavirani-hranic-40316597, visited on March 24th, 2020
16https://www.schengenvisainfo.com/news/breaking-eu-decides-to-close-all-schengen-borders-for-30-days, visited on 24 March 2020
17https://www.nato.int/nato_static_fl2014/assets/pdf/2020/5/pdf/200515-eadrcc-094-unocha-covid19-request.pdf, visited on 18 May 2020
18Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2014, OSCE Ministerial Council, Basel 2014, MC.GAL/5/14, 2 December 2014; http://www.osce.org/cio/128916?download=true
19Charter of the United Nations, Article 2(1)
20Agreement between the Parties to the North Atlantic Treaty regarding the status of their forces, dated 19 June 1951
21The Law of International Disaster Response: Overview and Ramifications for Military Actors, David Fisher, International Law Studies – Volume 83 (2007), page 303
22https://www.nato.int/cps/en/natohq/news_174481.htm, visited on 24 March 2020
23https://www.nato.int/cps/en/natohq/news_174783.htm, visited on 1 April 2020
24https://www.nato.int/nato_static_fl2014/assets/pdf/2020/4/pdf/200401-EADRCC-Requesting-assistance-in_3.pdf, visited on 20 April 2020
25https://www.nato.int/eadrcc/sop/sop_eadrcc/sop_eadrcc.htm#Sample Promulgate Request, visited on 21 April 2020
26NATO’s Role in Disaster Assistance, NATO 2001, Second Edition, First Edition Published May 2000
27https://www.nato.int/cps/en/natohq/official_texts_174855.htm, visited on April 6th, 2020
28NATO defined “resilience” as “the ability of a functional unit to continue to perform a required function in the presence of faults or errors” (NATOTerm, record 31202).
29Resilience and Article 3, https://www.nato.int/cps/en/natohq/topics_132722.htm, visited on May 25,2020
30https://www.osce.org/secretariat/448675, visited on April 1st, 2020
31The North Atlantic Treaty, dated 4 April 1949, available at https://www.nato.int/cps/en/natohq/official_texts_17120.htm
33AJP-4.5, Allied Joint Doctrine for Host Nation Support, Edition B, Version 1, May 2013
34https://www.nato.int/cps/en/natohq/51288.htm, visited on 2 July 2020
35Iceland, Norway, Serbia, North Macedonia, Montenegro, and Turkey (https://ec.europa.eu/echo/what/civil-protection/mechanism_en)
36https://ec.europa.eu/echo/what/civil-protection/mechanism_en, visited on 2 July 2020
37The Law of International Disaster Response: Overview and Ramifications for Military Actors, David Fisher, International Law Studies – Volume 83 (2007), page 299
38Treaty between the Federal Republic of Germany and the Czech Republic concerning mutual assistance in the event of disaster or serious accident, dated 19 September 2000, available at http://disasterlaw.sssup.it/wp-content/uploads/2015/11/Treaty-Germany-Czech-Republic-on-mutual-assistance-the-event-of-disasters-and-serious-accidents-2003.pdf, visited on May 28, 2020
39EU preparedness against CBRN weapons, Study requested by subcommittee SEDE, Policy Department for External Relations, Directorate General for External Policies of the Union, PE 603.875 – January 2019, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2019/603875/EXPO_STU(2019)603875_EN.pdf, visited on June 2, 2020
40Guidelines on The Use of Foreign Military and Civil Defence Assets In Disaster Relief, Revision 1.1 November 2007, United Nations Office for the Coordination of Humanitarian Affairs, available at https://www.unocha.org/sites/unocha/files/OSLO%20Guidelines%20Rev%201.1%20-%20Nov%2007_0.pdf, visited on 1 June 2020
41NATO Civil Emergency Planning Civil Protection Group, Model Technical Arrangement on the Liability of Relief Personnel, 2014, available at https://www.nato.int/eadrcc/docs/Tech_Arr_Liability-Relief_Personnel_2014.pdf
42Report to the Ministerial Council on Strengthening the Legal Framework of the OSCE in 2014, OSCE Ministerial Council, Basel 2014, MC.GAL/5/14, 2 December 2014; http://www.osce.org/cio/128916?download=true
43The Law of International Disaster Response: Overview and Ramifications for Military Actors, David Fisher, International Law Studies – Volume 83 (2007), page 303
44Privileges and Immunities of International Organizations, Zdeněk Hýbl, The Three Swords, The Magazine of the Joint Warfare Centre, July 2017, Issue No. 32, page 24
45Article IV of the Agreement on the status of the North Atlantic Treaty Organization, National Representatives and International Staff, signed in Ottawa 1951 states that the Organization, meaning the North Atlantic Treaty Organization, consisting of the Council and its subsidiary bodies, “shall possess juridical personality; it shall have the capacity to conclude contracts, to acquire and dispose of movable and immovable property and to institute legal proceedings.”
46Privileges and Immunities of International Organizations, Zdeněk Hýbl, The Three Swords, The Magazine of the Joint Warfare Centre, July 2017, Issue No. 32, page 22
47Agreement between the Parties to the North Atlantic Treaty regarding the status of their forces, signed at London, on 19 June 1951
48Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty, signed at Paris, on 28 August 1952
49Deputies document D-D(52)2, in Joseph M, Snee (Ed), NATO Agreements on Status: Travaux Preparatoires, U.S. Naval War College, International Law Studies 1961, page 596
50Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969 and entered into force on 27 January 1980, Articles 31 - 32
51Klag v Supreme Headquarters Allied Powers (SHAPE), Kaiserslautern Labour Court, Reference Number 3 Ca 843/17 (20 February 2018), pp. 7 and 11. The judgment became final on 27 March (YEAR?) since Mr Klag did not appeal
52https://legal.un.org/ilc/guide/9_11.shtml, visited on 17 June 2020
53The Law of International Disaster Response: Overview and Ramifications for Military Actors, David Fisher, International Law Studies – Volume 83 (2007), page 304
54NATO Civil Emergency Planning Civil Protection Group, Model Technical Arrangement on the Liability of Relief Personnel, 2014, available at https://www.nato.int/eadrcc/docs/Tech_Arr_Liability-Relief_Personnel_2014.pdf
55Article I, para 1(a) of the NATO SOFA
57Draft Convention in Expediting the Delivery of Emergency Assistance, available at https://www.ifrc.org/docs/idrl/I358EN.pdf, visited on 30 June 2020
58Guidelines on the use of foreign military and civil defence assets in disaster relief, Revision 1.1 November 2017, available at https://www.unocha.org/sites/unocha/files/OSLO%20Guidelines%20Rev%201.1%20-%20Nov%2007_0.pdf, visited on 30 June 2020
59Please see footnote 9.
60https://www.ifrc.org/docs/idrl/I358EN.pdf, visited on 23 June 2020