PSPD in English Archive 2000-10-31   2450

The Korean/U.S. Status of Forces Agreement (SOFA)

The Korean/U.S. Status of Forces Agreement (SOFA)

Peter Kloepping

In the wake of the contemporary public debate proposing the amendment of the SOFA numerous South Korean citizens call vehemently for a significant revision of the treaty. By comparison with the equivalent treaties signed between U.S. (NATO)-Germany and U.S.-Japan it turns out that the Korean SOFA is the most disadvantageous and is undermining the integrity and sovereignty of South Korea. Further infringements originate from the whole Mutual Defence Treaty stipulating operative command for the U.S. As for now there are still 37.000 U.S. troops stationed in 96 places throughout Korea. 

The fierce resistance against the unjust Korean SOFA originates on the base of the following reasons. Firstly, there is no way for the Korean side to wield criminal jurisdiction against U.S. servicemen who committed crimes. Korean victims remain without executed justice and appropriate compensation. Only 2% of indicted U.S. servicemen were found guilty and got punished. Secondly, the U.S. can require land for new compounds, shooting ranges or maneuver area. The acquisition as well as the use of current facilities and land is free of any charge. Thirdly, the U.S. is not obliged to take responsibility for environmental damage caused by the usage of facilities and conducting military exercises. Fourthly, Koreans who are employed by the U.S. forces do not enjoy the same rights and conditions as ordinary Korean laborers do. Fifthly, Korean custom officers have no right to inspect the luggage and equipment of U.S. servicemen moving under orders as well as military cargo shipment. So that public security becomes endangered and contradictions with Korean Foreign Policy might occur.

The points mentioned above are just the top of the iceberg and selected as main facts to envision the scope of the problems. Of course, there are more different and detailed issues on the agenda.

Where stands Korea – A comparison with the German and Japanese SOFA

1. Jurisdiction of U.S. servicemen

In practice it is impossible for Korean authorities to persecute any U.S. serviceman who committed crime against Korean citizens. As Article 22 (Paragraph 1 a) in the Korean SOFA stipulates the U.S. military authorities have the right for jurisdiction over members of the U.S. armed forces, the civilian component and their dependents under the law of the United States. First, the problem for the Korean case is to find in “dependants”. While in the treaties with Germany and Japan “dependants” are defined as family members, in the Korean treaty the interpretation is extended also to civilians who remain outside Korean jurisdiction.

Second, in the NATO-Germany and U.S.-Japan treaties is a different expression to find relating to the judicative rights of both countries, which provides more leeway for conducting legal acts nationally. Here, the criminal jurisdiction right applies to all parties obliging the martial law of the United States. Thus dependants of the U.S. forces are subject to local jurisdiction.

The main flaw taking away Korean right to exercise jurisdictional power is kept in Article 22 Paragraph 3c. Although Paragraph 3b provides “primary right to exercise jurisdiction” to the Korean authorities, Paragraph 3b implies a waiver of this right: “The authorities having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right…” This stipulation is also to find in the Japanese SOFA.

Those inequalities have to be rethought and appropriate measures have to be taken for adjustment.

2. The use of facilities and land

The usage of land and ground for military purposes of the U.S. forces is free of any charge and the military authorities can even demand further space for their military operations. In the Korean SOFA are no paragraphs to find which stipulate a time limited use of land or facilities – a contract period – and then a successive return to the former owners.

As for the latter point, this is explicitly negotiated in the NATO-German supplementary agreement in which Article 48, Paragraph 1b foresees that the military authorities should apply for land for military purpose to the Federal authorities conveying detailed specifications of type and size of force, the general area and the approximated duration of the requirement. Furthermore paragraph 5a contains that U.S. armed forces are committed to examine continually their demands of used land and especially in individual cases on demand of the German authorities. As for the fact that the land is no longer needed prior to the fixed duration or with the finish of the duration, the land shall released and returned without delay. A prolongation may be granted insofar the owner or other entitled persons agree or if it is permissible under German procurement legislation (Article 48, Paragraph 5c supplementary agreement).

3. Environmental aspects

The environmental issues are closely linked to the usage of land and facilities. The articles 4 in the Korean as well as in the Japanese SOFA are astonishing resembling. The U.S. is not obliged. to restore facilities and areas to the condition in which they were at the time they became available., or to compensate . in lieu of such restoration.

As a conclusion for Korea, the U.S. forces are not subject to the Korean environment law and cannot be made responsible for inflicted environmental damage.

The situation looks different for the German case. Article 48, 4 of the supplementary agreement prescribes A force or a civilian component shall be responsible for carrying out such repairs and maintenance as are required to keep the accommodation . in a proper state of preservation unless the accommodation was made available against payment. Furthermore, Article 53, Paragraph 1,3 stipulates that local standards, demands and laws have to be met within facilities and bases.

Obviously, here is a remarkable difference between the German and Korean/Japanese SOFA, which implies that the U.S. is regarding environmental issues not accountable for.

4. The issue of labor rights

Korean civilians are indirectly employed in the U.S. armed forces. This stands in contrast to the Japanese/German agreement where civilians are directly employed. Thus, Korean employees do not enjoy the same labor rights as other Korean employees do. Especially regarding employment security, in the “Agreed Minutes” Article 17, 2 secures the employment insecurity:” … the United States may terminate employment at any time the continuation of such employment is inconsistent with the military requirements of the United States armed forces.”

As for the German case it is explicitly determined that the German labor law for civilian employees of the German armed forces has to be applied (Art. 56, 1a supplementary agreement); that the provisions of German law regarding social insurances shall apply (Paragraph 3); and that German authorities with the consent of authorities of the armed forces or civilian component “shall establish the terms and conditions of employment, including wages, salaries and job groupings, which shall serve as the basis for individual employment contracts, and shall conclude tariff agreements.” (Paragraph 5a)

The prescriptions for the Korean employees do also curtail trade union rights. For instance the right of workers and trade unions representing them, a so called “cooling off” period of 70 days before taking any following action of an occurred dispute and Article 17, 4a provides the right for labor dispute settlement for the U.S. armed forces.

The German supplementary agreement Article 56,9 accommodates that “German law concerning personnel representation as applicable to the civilians employees of the German armed forces shall apply to the employees’ representation…” In addition to that Paragraph 8 delegates labor disputes “shall be subject to German jurisdiction.”

5. Entry and Exit issues

Article 8, 2 of the Korean SOFA is as following: “Members of the United States armed forces shall be exempt from passport and visa laws and regulations of the Republic of Korea. Members of the United States armed forces, the civilian component and their dependants shall be exempt from laws and regulations of the Republic of Korean on the registration and control of aliens…”

Almost the same wording is to find in the German agreement (Art. III, 1) and Japanese agreement (Art. IX, 2). These provisions give space for the persons subject to those Articles to import and export goods for criminal purposes. Furthermore, the not required exit and entry control serves as a loophole for persons who conducted crime and concludingly supporting that, when the U.S. military authorities did not inform the Korean authorities timely about the change of the status of an indicted service man.

If the status of a person is altered with the consequence that this particular person is not any more subject to the Article mentioned above, the military authorities have to notify the local locale governments. In the Korean (Art. 8, 5) and the Japanese (Art. IX, 5) SOFA is no time spann regulated to do this. At least the German treaty (Art. III, 4) is a bit more specified: “the sending State shall immediately inform the authorities of the receiving State.

6. Duration of the agreement

The duration of the treaty and under which circumstances it can be canceled remains a hot question. The different positions of Korea and Japan in comparison with Germany reveal the power in negotiations and quality of political links to the U.S. of the later one. While Korea (Art. 31) and Japan (Art. XXVIII) are confined to the liabilities imposed by the Mutual Defence Treaty: “This Agreement,… shall remain in force while the Mutual Defence Treaty between the Republic of Korean and the United States remains in force unless terminated earlier by agreement between the two Governments.”, the German position is not that tightly pinned down.

Article XIX, 1 in the German agreement expresses that the “Agreement may be denounced by any Contracting Party after the expiration of a period of four years from the date on which the Agreement comes to force.” Paragraph 2 foresees the following procedure in which the denunciation should be conveyed as notification in a written form to the U.S. government. Finally, Paragraph 3 stipulates that the denunciation “shall take effect after one year after the receipt of the notifiation by the Government of the United States…”

Conclusive remarks

After perusing and comparing the three treaties it becomes obvious that specific imbalances and differences exist. As a matter of fact, when creating a scale it evidently appears that the Korean agreement is the most disadvantaged and the German one the most favorable. Now the questions emerge, what are the reasons for this incidence why are the stipulations so discriminatory set?

Time is due to rethink the contents and revise different aspects of concern to meet the public opinion and to keep accordance with the changed political environment and progressive development throughout East Asia and on the Korean peninsula.

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