Article citation information:
Barcik, J., Czech, P. NATO transport through a “Schengen military zone” from an international legal perspective. Scientific Journal of Silesian University of Technology. Series Transport. 2018, 98, 05-14. ISSN: 0209-3324. DOI: https://doi.org/10.20858/sjsutst.2018.98.1.
Jacek BARCIK[1],
Piotr CZECH[2]
NATO
TRANSPORT THROUGH A “SCHENGEN MILITARY ZONE” FROM AN INTERNATIONAL LEGAL
PERSPECTIVE
Summary. The cross-border transport of soldiers and military equipment is particularly difficult and characterized by a distinct difference with civil transport. For its implementation, political will is needed, in line with the tolerance of representatives of foreign armed forces on the territory of the state, as well as adequate transport capacity and infrastructure capable of ensuring transport efficiency. These circumstances are particularly important in the case of alliance cooperation within NATO in the Euro-Atlantic subregion. Legislation within the organization is designed to ensure coordination of military transport activities. However, the procedures currently in place are criticized as being too rigid and failing to provide a quick transfer of forces and resources in the event of a sudden threat to one of NATO’s allies. For this reason, there have been calls to create an allied “Schengen military zone”, in which the Schengen Agreement would be abolished, internal controls and administrative hindrances between NATO countries would be lifted, and the free transport of soldiers and military equipment would take place. The aim of this article is to examine the feasibility of implementing this proposal and to identify the basic difficulties involved in carrying out military transport within the NATO context. A question arises about the possibility of creating a “Schengen military zone” for NATO. The aim of the article is, firstly, to present NATO legal sources governing the issue of military transport. In the next part of the analysis, allied military transport procedures will be analysed, accompanied by a critical identification of potential shortcomings. The article concludes by providing answers to the research question.
Keywords: Schengen military zone, military transport, North Atlantic Treaty Organization (NATO)
1.
NATO LEGAL SOURCES IN RELATION TO MILITARY TRANSPORT
Military transport can be defined as
the transport of troops, armaments and military equipment between the point of
loading and the destination, using various means of transport. Such transport
can include road transport, rail transport, maritime transport, air transport
and, albeit relatively rarely used, inland transport, each of which is
characterized by certain differences, as reflected in NATO’s internal
legislation. The main NATO document in this area remains the Allied Joint
Movement and Transportation Doctrine[3].
In previous years, the following were also important: STANAG
2454, AMovP-1 (Road
Movements and Movement Control)[4];
STANAG 2455, AMovP-2 (Procedures
for Surface Movements Across National Frontiers)[5];
STANAG 2456, AMovP-3 (B) (Movement and Transport Documents and Glossary of Terms and Definitions)[6];
STANAG 2468, AMov P-4 (Technical
Aspects of the Transport of Military by Railroad)[7]; STANAG 2236, AMov P-5 (Multi Modal Transport Issues)[8]; AMov
P-6 (Allied Multi-modal Transportation of Dangerous Goods Directive)[9]; STANAG 4441, AASTP-2)
Manual of Safety Principles for the Transport of Military Ammunition and
Explosives)[10];
AASTP-5 (NATO Guidelines for the Storage, Maintenance and Transport of
Ammunition on Deployed Missions or Operations)[11]. These documents
have the character of so-called
Standardization Agreements (STANAGs), each of which, according to NATO
terminology, is a “normative
document, recording an agreement among several or all NATO member nations, that
has been ratified at the authorized national level, to implement a standard, in
whole or in part, with or without reservation”[12].
They are therefore special types of international agreement through which NATO
member states commit themselves to the standardization of a particular type of
equipment or procedures. Apart from the aforementioned legal acts, included in
the NATO acquis, it should be noted that a number of other types of legal acts
is also affected by military transport, including:
1) Multilateral international
agreements on military cooperation, primarily the Agreement Between the States
Parties to the North Atlantic Treaty on the Status of Their Armed Forces, drawn
up in London on 19 June 1951, also called the North Atlantic Treaty Organization Status of Forces Agreement (NATO
SOFA).
2) Bilateral international
agreements on military cooperation.
3) International Regulations for the Transport of Dangerous
Goods, contained in the European Agreement Concerning the International
Carriage of Dangerous Goods by Road (ADR), agreed in Geneva on 30 September
1957.
4) International
agreements in the field of railway. For military rail transport, the provisions
of international agreements in the field of railways also apply. First of all,
the Convention on International Carriage by COTIF of 1980 (as amended by the
Protocol of 1999) and the Annexes to the Convention (in particular, Annex A
“Uniform Rules for the International Carriage of Persons by Railways” (CIV);
Annex B “Uniform Rules for International Carriage of Goods by Rail” (CIM); and
Annex C “Regulations for the International Carriage of Dangerous Goods by Rail”
(RID)). A European Agreement on Major International Railway Lines (AGC) and the
International Convention on Safe Containers are also in force.
5) International agreements
falling within the law of the sea and relating, inter alia, to the safety of
navigation and the protection of the environment (primarily, the Convention on
the Law of the Sea of 10 December 1982).
6) International agreements included in
aviation law, including the Convention on International Civil Aviation, signed
in Chicago on 7 December 1944, and Annex No. 18 (Safe Transport of Hazardous
Materials by Air) to the Convention.
7) Internal national
regulations, as generally applicable, as well as ministry, often adopted by the
Ministry of National Defence.
The analysis of the aforementioned acts allows us to state, in a very
simple way, that the military transport process in NATO consists of two basic
elements:
1) Planning
and preparation of transport, including, first and foremost, the development of
a movement plan and the granting of consent for the displacement of foreign
troops through the territory of another allied state.
2) Proper
transport, including, in the case of road transport: the passage of border
formalities (especially customs) when crossing state borders; organization of
the passage, including the marking of military vehicles and protection for the
passage. Certain differences exist in the case of maritime and air transport.
In each of the above elements, there
are some shortcomings limiting the rate of military transfer. This is despite
the fact that the Allied Joint Movement and Transportation Doctrine within NATO
is based on nine principles, which in practice are difficult to achieve. These include:
a) Collective
responsibility. NATO and nations have a collective responsibility for movement
and transportation (M&T) support to NATO operations. This responsibility
extends from initial M&T planning through to strategic deployment,
reception, staging, onward movement, sustainment and redeployment stages of
operations.
b) Cooperation.
Cooperation between NATO and national authorities, both military and civil, is
essential. Such cooperation can be of a bi- or multilateral nature. This
includes, as required, non-NATO nations, the EU, the UN and other
organizations. Cooperation between NATO and these entities will be consistent
with agreed and applicable NATO logistics policies, decisions and procedures.
c) Coordination.
It is essential that all M&T activities are fully coordinated and
synchronized at the appropriate levels.
d) Effectiveness.
M&T planning and execution must be primarily tailored to satisfy NATO
operational requirements.
e) Efficiency.
Use of military and civil resources, facilities, existing infrastructure must
be optimized, for example, by considering economies of scale.
f) Flexibility.
M&T support must be proactive, adaptable and responsive to achieve the
objective and capable of reacting in a timely manner to changes in the
operational situation and/or requirement.
g) Simplicity.
M&T plans and procedures must be kept as simple as possible.
h) Standardization.
Systems, data, software, procedures and equipment must be standardized to
facilitate interoperability and M&T support.
i) Visibility
and transparency. The exchange of M&T information between all participants
is essential for the efficient planning, coordination and execution of M&T
tasks.
2. PLANNING AND
PREPARATION OF MILITARY TRANSPORT
Transportation planning for NATO
operations is part of a broader alliance planning process. Each country
prepares its own national Detailed Deployment Plans, using the Allied
Deployment and Movement System as a planning tool to facilitate the planning of
movement and transfer of information in allied operations. When planning the
plan, the Allied Disposition List is taken into account in order to address the
requirements, objectives and priorities of the operations commander. On the
basis of national plans, a joint Multinational Detailed Deployment Plan is
prepared at NATO planning conferences.
In the case of road transport, in accordance
with NATO’s accepted planning principles, the competent authority of the state
for the transport and movement of troops in which the displacement begins, upon
receipt of the “permit for passage “ from the
sending military unit, analyses the sent passage plan concerning roads to its
border crossings. Subsequently, this authority draws up a “permit for passage” and sends it to the appropriate
troops transport and movement authority of the host country, in which the
planned border crossing points are determined, as well as the time of crossing
them. The military transport and movement arm of the host country prepares a “permit for passage” from its border crossing points and
transfers it to the authority of troops transport and movement relative to
where the displacement begins. This authority then directs the obtained “permit for passage” to the sending unit. In the case of
transit through several countries, the country where the shipment begins must
submit the demand for transit to the first transit state. Once the march has
been developed, the first transit state will forward all documentation to the
next state for further reconciliation. Subsequently, the transit state either
sends the documentation to the next transit state or returns the “permit”
received to the first transit state. The transit state then directs it to the
state where the displacement begins.
The sending state, when making any arrangements
with the carrier and the authorities of the transit states and the host
country, must draw up a movement plan containing a set of planning and
calculation documents, describing in detail the time and space planned for the
displacement of the military unit.
As a result, the displacement of troops abroad
requires, on every occasion, the consent of the country/states concerned,
through which the transport will take place. This lengthens the transit
process, as the request for such a permit (“CLARIS”) must be made in advance by
the authority of the sending state or by an international organization under
whose command foreign troops remain. For example, in Poland, a minimum of 30
working days’ notice is required before any planned date of the commencement of
the deployment of troops. CLARIS is associated with certain administrative
difficulties, as it should contain, inter alia, a list of participants in
transport, a list of personal weapons, a list of goods, a list of dangerous
goods, and a list of vehicles and their load. Other data are required, such as
the operation codes, the identification numbers for residence permits or
transfers, the international vehicle identification codes (types and numbers of
vehicle columns), the location of the place of loading and planned departure
time, the crossing points (route of departure) and planned arrival time, the
location of the destination (stopping, resting, unloading, centred area), the
quantity and type of cargo (number of passengers, cargo volume in tons and
cubic metres, data on dangerous goods, number of wheeled/crawled vehicles), and
data on further movement (road passage requirements or “permit for passage”
numbers, land means of transport requirements or reply for requirement
numbers).
As can be seen from the above, the preparation
of a motion request is a long-term logistical and administrative project.
Regardless of the technical aspects of the shipment, the administrative and
legal procedures for expressing consent to the shipment sometimes take several
weeks. It should also be remembered that, in some European federal states, such
as Germany, every region aspires to have its own procedures, which further
complicates matters and requires time-consuming consultations. In addition,
additional, separate authorizations are sometimes required when moving special
vehicles, special-purpose vehicles, vehicles used in connection with
special-purpose vehicles, non-standard vehicles and vehicles carrying dangerous
goods.
The same
principle applies to the obligation to obtain the consent of foreign states
through whose territory the shipment will be carried out in the case of
military maritime and air transport. Marine maritime transport is affected by
the division of maritime areas in international law. Each of them is governed
by specific regulations related to access to a given sea area. Diplomatic
consent for displacement is required in the case of inland water, which is
treated in the same way as the land territory of the country. However, consent is not necessary in
the case of transport through the territorial sea of the state, as it is valid
in the context of the so-called international law of harmless flow[13].
This applies to all states and results in the possibility of carrying out
transport without obtaining the formal consent of the coastal state. The right
also applies to warships if they are used for transport purposes or as escorts
for transport. This is the case for maritime transport in NATO. For example, on
23-24 May 2017, two ships (the Norwegian freighter Roald Amundsen and the Dutch
freighter Zr.Ms. Evertsen) belonging to the First Standing Maritime Group 1
escorted a British civilian ship (MV Hartland Point), which was transporting
armaments from Norway to the Port of Klaipeda in Lithuania in order to supply
Lithuanian troops deployed in Eastern Europe as part of NATO’s international
divisions[14]. The
lack of diplomatic consent for transport also concerns the maritime exclusive
economic zone of the state. This does not alter the necessity of planning and
presenting, in a graphical and descriptive manner, a specific maritime
transport operation.
The diplomatic consent of a foreign state also
requires the air transport of soldiers and equipment in its airspace. Air
transport planning can be defined as the design for the transport of troops,
armaments and military equipment from airports to be loaded at the airport of
unloading, as well as a description of how it works in order to achieve its
objectives. Consent is preceded by the timely preparation of the transport plan
and submission needed to apply for consent (shorter deadlines apply compared to
land transport). It is possible to apply for a standard form for special
aircraft requests, or a standard form for blanket overflight clearance in order
to cross a state border and fly one or more foreign military aircraft. Special
rules apply when planning the carriage of loads with hazardous materials (e.g.,
combustible materials, poisonous materials). The Dangerous Goods Regulations,
issued by the International Air Transport Association, apply here[15].
The transportation of such materials is also subject to the consent of the
transit states and the receiving state. The classification of hazardous
materials is used in the classification of hazardous materials, while the
International Civil Aviation Organization’s branding is included in the
labelling, as per Annex 18 (Safe Transport of Hazardous Materials by Air) to
the Convention on International Civil Aviation, signed in Chicago on 7 December
1944[16].
Coordination
of the movement of troops within the territory of individual countries is
carried out within NATO by the National Movement Coordination Centres (NMCCs)
created by each of the countries involved in the joint operation. Although
NMCCs are built on the basis of each country’s domestic law, they should remain
compatible with the structures responsible for controlling land roads, airspace
and sea lanes. Within an NMCC, there are liaison officers from other states
involved in the operation and the operation commander him/herself. The work of
an NMCC is coordinated by the Allied Military Coordination Centre, which helps
the Allied Command Operations to manage the strategic relocation to the area of
operations, the supply of transport and the withdrawal of forces.
3. IMPLEMENTATION
OF TRANSPORT
The implementation of transport also entails
certain administrative obstacles, which in turn slows down the deployment of
troops. The most important is the necessity to overcome certain border
formalities when crossing borders, which include border control, customs
clearance, foreign exchange and sanitary services.
The crossing of a state border be means of
military transport should be carried out at established and agreed border
crossing points on the basis of documents that allow such passage.
When crossing a border, military service
vehicles or civilian personnel, in addition to registration numbers, should
carry a visible symbol of their own country. Members of foreign armed forces
should generally be uniformed and are exempted from the reporting obligation.
Based on Article III of the NATO
SOFA[17], personnel of NATO member states’
armed forces are neither subject to passport and visa regulations nor to the
control of immigration authorities when entering or leaving the territory of
another member state. In addition, while they are not subject to the host
country regulations concerning the registration and control of aliens, this
does not mean that they are entitled to permanent residence or residence in the
territory of another member state. The NATO SOFA, however, requires members of
foreign armed forces seeking to cross the border to be in possession of two
documents, which must be presented on request: an identity card issued by the
sending state, including the bearer’s name, date of birth, degree and number
(if any), type of service and photograph; and an individual or collective
departure order (NATO Travel Order) in the language of the sending state, as
well as in English and French, issued by the appropriate authority of the
sending state or NATO, confirming the status of the person or group of persons
as a member or members of the armed forces, along with the order of departure.
The receiving state may require the departure order to be countersigned by its
competent representative.
Pursuant
to Article XI of the NATO SOFA, the temporary importation and re-export of
military vehicles or civilian personnel at their disposal are exempt from
customs duties. However, it is required to submit an appropriate form (Form 302
“Customs Declaration for Export and Import for Goods that Are Owned by the
Armed Forces”). Exemptions from the customs duty are also subject to official
documents bearing an official stamp.
The
transport of troops by road is carried out using columns of military vehicles.
These are groups moving along the same road, at the same time and in the same
direction as the vehicles, directed by commanders of the columns. A column may
consist of groups of vehicles, while their use is to ensure efficient and timely
displacement. For safety reasons, certain distances between vehicles must be
observed. In addition,
in the course of road haulage, the rules, including those of the road, of the
host country should be respected. Columns should be labelled according to NATO
standards (AMovP-1 “Road Traffic Regulations and Procedures and Traffic
Management Agencies and Services”) applicable to military columns. These
include provisions for lighting and flagging vehicles. Passing beams of all
vehicles moving in the column must be switched on. It is required that the
first and last vehicles of each column element (vehicle group) have a blue flag
attached to front-left side (not a single column pass). The column commander’s
vehicle is marked with a black and white flag, which is also attached to the
front-left side. In turn, any damaged vehicle is marked with a yellow flag,
visible to oncoming traffic. On the left of both the first vehicle at the front
and the last vehicle at the back, on the left is placed a special signboard for
marking the columns of military vehicles. In the case of passage of the column
by expressway or motorway, a yellow flashing warning light should be placed on
vehicles, which must be visible from a distance of at least 150 m with good air
transparency. The signal on the first vehicle should be visible at least at the
front and at the sides of the vehicle, while the signal on the last vehicle
should be visible at least at the rear and at the sides of the vehicle (this
requirement is not applicable when piloting the column by marked military
police or military traffic control vehicles).
Each vehicle column is identified by
a number, referred to as a roadside permit number. It allows the column to be
identified throughout the movement, including crossing national borders. This
number should be on a contrasting colour, placed on both sides of each vehicle.
During military transport, it is also possible
to pilot it. This term is understood as a set of activities performed on a
public road aimed at ensuring traffic safety during the passage of a
non-standard vehicle or vehicle column.
The
security of the military columns may be of a combat and logistical nature. The
first type of protection is used during an armed conflict. Combat security is
organized to ensure the smooth running of the columns and groups of vehicles on
the roads, as well as to ensure smooth entry into the battle of moving troops
in the event of an unexpected encounter with an enemy whose forces cannot be
overcome. Logistical security is related to the handling of technical transport
(e.g., refuelling, repairing damaged vehicles), medical (medical help for the
injured and sick during the journey), as well as meals during the journey. It
is also important to ensure the communication and coordination of military
movements. Security is
provided, for example, by a registration system. Within the framework of NATO,
there are two main message options: Deployment Report (DEPLOYREP) and Movement
Assessment Report (MOVASSESSREP).
In the case of maritime transport,
in accordance with the requirements of the International Maritime Organization,
each vessel should have a cargo securing manual containing a description of the
vessel’s anchoring system. Special attention has been paid to the transport of
hazardous materials, which should be stored in accordance with the rules set
out in the International Maritime Dangerous Goods Code (IMDG Code). The loading
of equipment should follow this order of priority: first, the equipment with
hazardous materials, then light vehicles, followed by heavy vehicles and,
finally, crawler vehicles. The unloading of maritime means of transport can be
carried out in fixed ports or on an ad hoc prepared shore. The planning and
coordination of landings are the responsibility of the host nation, the country
in which the landing port is located. Sending nations have an agreement with
the host country, specifying the scope of support and regulating mutual
settlements. In the absence of a host country, or if its host nation support is
insufficient, the lead nation, based on NATO procedures, takes over the role of
the security of landings. Maritime transport should be coordinated with air
transport and shipment to and from the ports of loading and unloading, as well
as when reaching the operational region of destination. Foreign vessels during
movement are obliged to comply with the domestic law of the country, alongside
international rules for the prevention of collisions at sea and the protection
of the marine environment, namely, the International Convention for the Safety
of Life at Sea (also known as the “SOLAS Convention”), drawn up in London on 1
November 1974[18], and
the IMDG Code, put into force by the Intergovernmental Maritime Organization
(IMO) [19].
In the case of air transport, it is
also necessary to be in possession of appropriate transport documents, such as:
a list of passengers on the aircraft; passports or passenger ID cards, with the
expiry date after the planned return date; NATO departure order (in the case of
allied transport); certificate for the master of the ship or air waybill; cargo
manifesto (equipment); declaration of the carriage of dangerous goods (in the
event of carrying such materials); a list of loads on pallets; load
specifications for containers; declaration of import and export customs for
goods that are owned by the respective armed forces (NATO’s so-called Form C
302); other documents required by the carrier or local authority regulations);
diplomatic transit documentation issued by transit countries and host countries
for aircraft flights in their airspace and landing.
At the moment of landing in the territory of
the Republic of Poland, foreign military aircraft begin border procedures,
related to border, customs, currency and sanitary controls.
4.
CONCLUSIONS
The division of territory and the principle of
territorial sovereignty are the basic determinants of military transport
abroad. Obedience determines the implementation of transport and demands the
application of diplomatic consent for carriage and compliance with the laws of
the state through which the transit is taking place.
As shown in the above paragraphs, the planning
and realization of transport within NATO is extremely complex, time-consuming
and tedious. It currently does not seem possible to abolish the traditional
conditions for the cross-border movement of troops, which requires the
diplomatic consent of a foreign state for the purposes of its transit through
or staying in that state’s territory. The essence of state sovereignty, which
still determines the content of legal regulations, includes the ability to
control all relations within the territory of the state. This also applies to
the sensitive issue of the control of foreign armed forces movement through
such territory. Changing this state of affairs would bring about a real
military threat, as evidenced by the history of post-war integration in Western
Europe, which is an important catalyst for integration processes. Realistic and
feasible to implement, however, is the reform and simplification of the
planning procedures in force within NATO itself. Their purpose would be to
eliminate unnecessary bureaucratic obstacles. Such reform would require
reflection on the part of NATO institutions and the goodwill of member states.
The creation of a “Schengen military zone”, similar to the civilian equivalent
in the EU, is currently not possible within NATO. That said, it is possible and
desirable to adopt a single procedure for the transfer of troops in the area of
NATO states by shortening all administrative and legal formalities related to
the movement of troops to 48 hours. The US Army Europe Military Commander,
General Ben Hodges, has appealed for this reform to take place, the urgency of
which was reinforced by the “Zapad” Russian-Belarussian military manoeuvres in
September 2017. In his view, the slow military transport procedures within NATO
blatantly contrast with the high degree of mobility concerning Russian forces.
Given how this threatens to directly undermine NATO’s eastern flank, any reform
of military transport procedures needs to be radical. It is clear that this
should be the foremost task for the planned new NATO command structure, which
is to be responsible for logistics issues.
References
1.
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the Dutch Minister of Defence presented in an official letter to the NATO
Secretary General and the High Representative of the European Union for Foreign
Affairs and Security Policy, in connection with the NATO summit in May 2017.
2.
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4.
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AMovP-1 (Road
Movements and Movement Control).
6.
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and Transport Documents and Glossary of Terms and Definitions).
8.
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P-4 (Technical Aspects of the Transport
of Military by Railroad).
9.
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11.
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Military Ammunition and Explosives).
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16.
Dangerous Goods
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17.
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18.
Agreement Between
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(NATO SOFA), 1955.
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Received 28.10.2017; accepted in revised form 20.01.2018
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