International Law & US ROK Status of Forces Agreement Ewha University (Seoul, Korea)

OVERVIEW I. Concepts and Policies of International Law II. International Agreements III. Status of Forces Agreements (SOFA) IV. US ROK SOFA V. Q & A

NON-ATTRIBUTION POLICY I. 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. II. Personal View Points. Not the stance of US.

INTERNATIONAL LAW I. Customary International Law. a. “Unwritten rules” b. General and consistent practice b. General and consistent practice c. Sense of obligation c. Sense of obligation II. Conventional International Law. a. Codified rules a. Codified rules b. Treaty b. Treaty III. Why is IL important and necessary?

INTERNATIONAL LAW IL: a. Advance our foreign policy interests. a. Advance our foreign policy interests. b. Source of authority. b. Source of authority. c. Standard to hold other states and judge our actions. c. Standard to hold other states and judge our actions. d. Protect the rights of citizens and companies. 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 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. b. Treaty and executive agreements.

TREATY IAW THE VIENNA CONVENTION Under VC, Article 2, a treaty is: Under VC, Article 2, a treaty is: a. An international agreement. a. An international agreement. b. In writing. b. In writing. c. Between States. c. Between States. d. Governed by IL. d. Governed by IL. There is no set format or title requirements. There is no set format or title requirements. Negotiated and concluded by individual with appropriate authority. Negotiated and concluded by individual with appropriate authority. Binding and good faith required. 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. 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. a. Receiving State. b. Sending State. b. Sending State. II. Why is it important? III. Types of SOFA: a. Comprehensive Multilateral or Bilateral SOFA. a. Comprehensive Multilateral or Bilateral SOFA. b. Mini-SOFA. b. Mini-SOFA. c. Temporary or Mission Specific SOFA. c. Temporary or Mission Specific SOFA. d. Supplements. d. Supplements.

PROVISIONS OF SOFA General Provisions. Persons covered by SOFA Persons covered by SOFA Criminal Jurisdiction Criminal Jurisdiction Civil Jurisdiction Civil Jurisdiction Entry & Exit Entry & Exit “Housekeeping” provisions. “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 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 Implements Mutual Defense Treaty of Core agreement in which ROK granted US right to “dispose land, air and sea forces” in Korea to “deter armed attack.” 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. Our basic stationing agreement. a. Executive Agreement governing most aspects of stationing US military forces in Korea. a. Executive Agreement governing most aspects of stationing US military forces in Korea. b. Supersedes relevant domestic law of both nations. b. Supersedes relevant domestic law of both nations. c. Entered into force in 1967 after protracted negotiations. c. Entered into force in 1967 after protracted negotiations.

US ROK SOFA SOFA STATUS. 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”). 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. 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. 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”). Ensures supportive environment for allied forces (i.e., provides US “quality of life”).

US ROK SOFA CRIMINAL JURISDICTION, ARTICLE XXII: CRIMINAL JURISDICTION, ARTICLE XXII: Exclusive: Exclusive: Security Offenses Security Offenses Concurrent: Concurrent: US Military Primary Jurisdiction: US Military Primary Jurisdiction: Offenses solely against property or security of US Offenses solely against property or security of US or involving SOFA status victim or involving SOFA status victim Official Duty Cases Official Duty Cases ROK Primary Jurisdiction: ANY OTHER OFFENSE ANY OTHER OFFENSE

US ROK SOFA WAIVER OF PRIMARY JURISDICTION 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. Onken (DUI / Death) ROK v. Humphreys (Sinchon Stabbing) ROK v. Humphreys (Sinchon Stabbing) ROK v. Gregory (Assault) 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 IDefinitions IIFacilities & Areas: Grant and Return IIIFacilities & Areas: Security Measures IVFacilities & Areas: Return of Facilities VFacilities & Areas: Cost and Maintenance VIUtilities and Services VIIRespect for Local Law VIIIEntry and Exit IXCustoms XAccess of Vessels and Aircraft XIMeteorological Services XIIAir Traffic Control and Navigation Aids XIIINon-Appropriated Fund Organizations XIVTaxation XVInvited Contractors

US ROK SOFA SOFA ARTICLES XVILocal Procurement XVIILabor XVIIIForeign Exchange Controls IXXMilitary Payment Certificates (no longer used) XXMilitary Post Offices XXIAccounting Procedures XXIICriminal Jurisdiction XXIIIClaims XXIVVehicles and Driver's Licenses XXVSecurity Measures XXVIHealth and Sanitation XXVIIEnrollment and Training of Reservists XXVIIIJoint Committee XXIXEntry Into Force of Agreement XXXRevision of Agreement XXXIDuration of Agreement

CONCLUSION Q & A