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court." 73 This broadened application of the exclusionary the NATO Status of Forces Agreement.)
rule would appear to be at variance with recent Supreme (2) The Supplementary Agreement. The Supplemen-
Court decisions. 74 tary Agreement is much more detailed and comprehen-
(g) The United States as a Receiving State. The sive than any previous or subsequent SOFA. It encom-
Service Courts of Friendly Foreign Forces Act was passes in one document matters which are generally treat-
enacted in 1944 in order to permit the operation of allied ed in a variety of agreements. Its comprehensiveness is
military courts on U.S. soil. 75 The act is designed to come in part attributable to the fact that a Federal system of
into operation by presidential proclamation. President Government exists in Germany and, as such, a detailed
Roosevelt issued the proclamation in 1944 shortly after agreement which would bind the 10 states (Laender) of
the act was passed. The proclamation was withdrawn in the Federal Republic of Germany on a host of local mat-
1955 inasmuch as Article W permits the establishment of ters was required. Similar arrangements have been the
such courts. However, there is much more involved than subject of general rather than detailed understanding in
courts. Such matters as the bearing of arms, licensing of other countries where, in the absence of the Federal
vehicles, waivers, taxes, postal privileges, the role of the system, broad understandings can be centrally and
state and federal authorities, etc., all must be taken into uniformly administered. The Supplementary Agreement
account. 76 contains 83 articles which are concerned with such diverse
10-5. Other Status of Forces Agreements. matters as the personal status of the members of a visiting
a. Germany. 77 (1) Origins. Until 1 July 1963 the rights force, custody and jurisdiction (both criminal and civil),
and obligations of the United States forces stationed in the accommodations, taxation, customs, damage claims and
Federal Republic of Germany were governed by the Bonn maneuver rights, liability insurance, vehicle registration,
Conventions of 1952, as amended by the Paris Protocol of the registration of deaths and births, social security, dri-
1954. One of these Conventions, the "Convention vers' licenses, enforcement of judgments, aerial photogra-
on Relations Between the Three Powers phy, procurement, and the like.
and the Federal Republic of Germany," provided that (3) The Jurisdictional Formula and Automatic
three of the conventions, the "Finance Convention," the Waiver. The item of greatest general interest is the ar-
"Forces Convention," and the "Tax Agreement" would rangement pertaining to the exercise of criminal jurisdic-
be replaced by the North Atlantic Treaty Organization tion over members of the United States forces, the civilian
Status of Forces Agreement (NATO SOFA) and such component, and the dependents of both these categories
supplementary arrangements as might be required to of personnel. Under the superseded "Forces Conven-
meet special conditions within the Federal Republic. On tion," the United States had what amounted to exclusive
11 October 1955, the negotiation of the Supplementary criminal jurisdiction over all United States service con-
Agreement began. On 3 August 1959, almost four years nected personnel in Germany. This arrangement has been
later, the Federal Republic of Germany and the NATO replaced by the jurisdictional formula of the NATO SOFA
countries with armed forces stationed in Germany (the as modified in important particulars by the Supplementary
United States, Belgium, Canada, France, the Nether- Agreement. Under the NATO SOFA, most serious
lands, and the United Kingdom) signed the agreement. 78 offenses committed by sending State personnel are subject
Because of delays incident to ratification, however, it did to the concurrent jurisdiction of both the sending and the
not come into force and effect until 1 July 1963. The receiving States. Article W of the NATO SOFA obligates
Federal Republic of Germany became the 14th of the 15 the state having the primary right to exercise jurisdiction
NATO countries to be bound by the NATO SOFA. (Ice- to give "sympathetic consideration'' to a request from the
land is the only NATO country which is not a signatory to other state for a waiver of that right in cases of particular
importance to the latter. In Article 19 of the Supplemen-
73. Id. tary Agreement, the Federal Republic of Germany has
74. See, e.g., United States v. Janis, 19 Crim L. Rep 3323. The agreed to grant to a sending State, upon request, a general
Court, in discussing the inter-sovereign applicability of the exclusionary waiver of its primary right to exercise jurisdiction in cases
rule stated: under the NATO SOFA, subject, however, to the right of
It is well-established, of course, that the exclusionary rule as a
deterrent sanction is not applicable where a private party or a foreign the German authorities to recall the waiver when they
government commits the offending act. (emphasis added) Id. at decide that, by reason of the circumstances of a specific
3330, n. 31. case, major interests of German administration of justice
75. 22 U.S.C.55 701-706 (1944). make imperative the exercise of German jurisdiction. The
of
76. See Ellert, The United States as a Receiving State, 63 DICK.L. ~i~cance the difference between this commitment
REV.75 (1959). and the waiver language of the NATO SOFA is obvious.
77. See, Esgain & Kenyon, The North Atlantic Treaty Organization In order to implement the waiver arrangement in the
Status of Forces Agreement with the Federal Republic of Germany, 10 Federal Republic of Germany, the United States re-
Fed. Bar News 291 (1963).
78. [I9631 14 U.S.T. 531, T.I.A.S. No. 535; 41 Dep't State Bull. quested that the general waiver be granted. (The require-
293 (1959). ment of a request for waiver was necessary because some