Transcript Bridging the Gap US ROK Status of Forces Agreement Yong J

International Law
&
US ROK
Status of Forces Agreement
Ewha University (Seoul, Korea)
OVERVIEW
I.
II.
III.
IV.
V.
Concepts and Policies of International
Law
International Agreements
Status of Forces Agreements (SOFA)
US ROK SOFA
Q &A
NON-ATTRIBUTION POLICY
I.
II.
Non-Attribution Policy. Treating
statements made in a school forum,
including but not limited to seminar
discussions, as privileged information.
Refraining from attributing any
statements to a specific individual.
Personal View Points. Not the stance
of US.
INTERNATIONAL LAW
I. Customary International Law.
a. “Unwritten rules”
b. General and consistent practice
c. Sense of obligation
II. Conventional International Law.
a. Codified rules
b. Treaty
III. Why is IL important and necessary?
INTERNATIONAL LAW
IL:
a. Advance our foreign policy interests.
b. Source of authority.
c. Standard to hold other states and judge our
actions.
d. Protect the rights of citizens and companies.
INTERNATIONAL AGREEMENTS
Framework of IA:
I. Contract v. IA.
a. Consideration & unilateralism.
II. Vienna Convention on the Law of Treaties, 27 Jan 1980.
a. US is NOT a party to the Convention.
III. International Term “IA”
a. Both legally binding and non-binding agreements.
IV. US Term “IA”
a. Generally refers to only legally binding
agreements.
b. Treaty and executive agreements.
TREATY IAW THE VIENNA
CONVENTION
Under VC, Article 2, a treaty is:
a. An international agreement.
b. In writing.
c. Between States.
d. Governed by IL.
• There is no set format or title requirements.
• Negotiated and concluded by individual with
appropriate authority.
• Binding and good faith required.
TREATIES AND OTHER IA UNDER
US LAW
Requirements:
a.
ID of parties.
b.
Intention to be bound.
c.
Significance of arrangement.
d.
Specificity to enable enforcement.
e.
Two or more parties.
f.
Form of agreement.
TREATIES AND OTHER IA UNDER
US LAW
TREATY (US):
a.
Made pursuant to the Constitutional treaty
making power. 2/3 vote by senate. Status as
“supreme law of the land.”
Executive Agreement (EA):
a.
Congressional EA.
b.
Presidential EA.
c.
EA pursuant to treaty.
TREATIES AND OTHER IA UNDER
US LAW
PRESIDENT may conclude an
international agreement on any subject
within the President’s Constitutional
authority so long as it is not inconsistent
with legislation enacted by Congress
pursuant to its Constitutional authority.
SOFA OVERVIEW
I. Terms:
a. Receiving State.
b. Sending State.
II. Why is it important?
III. Types of SOFA:
a. Comprehensive Multilateral or Bilateral SOFA.
b. Mini-SOFA.
c. Temporary or Mission Specific SOFA.
d. Supplements.
PROVISIONS OF SOFA
General Provisions.

Persons covered by SOFA

Criminal Jurisdiction

Civil Jurisdiction

Entry & Exit

“Housekeeping” provisions.
Negotiating and conclusion of SOFA.
US Official must have both substantive and procedural
authority to negotiate. The negotiation and conclusion
of an IA must be approved by the state department.
US ROK SOFA
•
Implements Mutual Defense Treaty of 1953.
Core agreement in which ROK granted US right to
“dispose land, air and sea forces” in Korea to “deter
armed attack.”
•
Our basic stationing agreement.
a. Executive Agreement governing most aspects of
stationing US military forces in Korea.
b. Supersedes relevant domestic law of both nations.
c. Entered into force in 1967 after protracted
negotiations.
US ROK SOFA
SOFA STATUS.




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US Military while in the ROK.
US Civilian Component:
• US Civilians in “employ of”, “serving with”, or
“accompanying” US armed forces (not “ordinarily
resident” in Korea) and Technical Representatives
Invited Contractors.
Dependents of the above.
Those assigned to JUSMAG-Korea and the American
Embassy are covered by separate agreements.
US ROK SOFA
BASIC PURPOSES OF SOFA
•
•
Defines legal rights and obligations of both governments
(i.e., “status of forces”).
Provides “facilities and areas” for use by US forces for
purposes of Mutual Defense Treaty.
•
Balances basic rights of US citizens with obligation to
respect Korean law.
•
Ensures supportive environment for allied forces (i.e.,
provides US “quality of life”).
US ROK SOFA

•
•
CRIMINAL JURISDICTION, ARTICLE XXII:
Exclusive:
• Security Offenses
Concurrent:
• US Military Primary Jurisdiction:
• Offenses solely against property or security of US
or involving SOFA status victim
• Official Duty Cases
ROK Primary Jurisdiction:
• ANY OTHER OFFENSE
US ROK SOFA

WAIVER OF PRIMARY JURISDICTION
“ The (ROK), recognizing that it is the primary
responsibility of the (US) military authorities . . . to
maintain good order and discipline . . . will, upon
request . . . waive their primary right to exercise
jurisdiction . . . except when they determine that it is
of particular importance that jurisdiction be exercised
by the (ROK).”
US ROK SOFA
Enforcement of Criminal Jurisdiction.
•
•
•
ROK v. Onken (DUI / Death)
ROK v. Humphreys (Sinchon Stabbing)
ROK v. Gregory (Assault)
Contrast:
US v Gray (Assault/Attempted
Kidnapping)
“Stabbing at Sinchon”
ROK v Humphreys
US ROK SOFA
SOFA PRIVILEGES



Exempt from ROK Income Taxes.
Exempt from ROK Customs Duties:
• Commissary (US Foodstuffs).
• PX/BX & NAF Activities (US Products).
• Duty Free Import.
 PCS Household Goods (up to 6 months).
 APO (Reasonable Quantities).
 POV.
Military Mail (APO).
US ROK SOFA
SOFA ARTICLES
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I
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
XV
Definitions
Facilities & Areas: Grant and Return
Facilities & Areas: Security Measures
Facilities & Areas: Return of Facilities
Facilities & Areas: Cost and Maintenance
Utilities and Services
Respect for Local Law
Entry and Exit
Customs
Access of Vessels and Aircraft
Meteorological Services
Air Traffic Control and Navigation Aids
Non-Appropriated Fund Organizations
Taxation
Invited Contractors
US ROK SOFA
SOFA ARTICLES

XVI
Local Procurement

XVII
Labor

XVIII
Foreign Exchange Controls

IXX
Military Payment Certificates (no longer used)

XX
Military Post Offices

XXI
Accounting Procedures

XXII
Criminal Jurisdiction

XXIII
Claims

XXIV
Vehicles and Driver's Licenses

XXV
Security Measures

XXVI
Health and Sanitation

XXVII
Enrollment and Training of Reservists

XXVIII
Joint Committee

XXIX
Entry Into Force of Agreement

XXX
Revision of Agreement

XXXI
Duration of Agreement
CONCLUSION
Q&A