Foreign Relations of the United States, 1964–1968, Volume XXVII, Mainland Southeast Asia; Regional Affairs

371. Telegram From the Department of State to the Embassy in Thailand¹

Washington, December 2, 1967, 1915Z.

78668. Joint State-Defense message. Subject: SOFA. Ref: Bangkokʼs 6616, 6617, and 6618.²

1. We have reexamined the entire SOFA question in light of history US-Thai negotiations and your recommendations reftels. It seems to us that the essential question raised by the Thai attitude throughout the negotiation, particularly their insistence on the supremacy of Thai law and their apparent unwillingness in written agreement to derogate from its application, is whether Thailand can accept any agreement that grants US forces kinds of exemptions and privileges found in status of forces agreements elsewhere in the world. Are they prepared to conclude formal arrangement which permits us to exercise court-martial jurisdiction in Thailand? Are they prepared to grant, in written agreement, tax and customs exemptions, entry privileges, and other exemptions and privileges usually accorded our forces as well as the operational rights necessary for carrying out mission of such forces.

2. Believe we have reached a point where we need to talk to RTG very candidly at high level to determine answers to these essential questions. If more forthcoming position on criminal jurisdiction is key to resolution SOFA impasse, we are prepared to settle on essentially the same arrangement which we concluded with the Philippines in 1965 (NATO-Netherlands waiver formula, US custody, and finality of US official duty certification), with hostilities provision and with appropriate safeguards against application martial law. We could also provide Thai with aura of reciprocity through Presidential Proclamation under Service Courts of Friendly Foreign Forces Act (22 USC 701–706) which would require US officials to assist any Thai military courts that may be convened in the US. This assistance includes attendance of witnesses. FYI. True reciprocity in the sense of the RTG being able to invoke waiver to oust federal or state jurisdiction in US not possible without submission of agreement to Senate for advice and consent to ratification. Presidential proclamation only assures assistance of US officials to Thai military courts which might be convened in US. End FYI. We would want to get fullest negotiating mileage out of any such criminal jurisdiction proposal by holding out the prospect of a forthcoming criminal jurisdiction arrangement as an inducement to Thai agreement on other subjects where we have few chips on our side.

3. We realize that formal SOFA, even with criminal jurisdiction arrangement more favorable to the Thai than draft which we have tabled, may still be unacceptable to Thai because it appears as formal, written derogation Thai law. If that is the case, we prepared as alternative to propose simple exchange of notes embodying general statement of principles which would.

a. Acknowledge Thai sovereignty and recognize duty of US forces to respect Thai law.

b. Recognize that there will be cases where the operational need to maintain the integrity of the US forces through full reliance upon the disciplinary powers of those forces (including the convening of courts-martial) will have to give way to the exercise of Thai jurisdiction in certain off-duty cases where the nature of the particular case is such that it is of paramount importance that Thai authorities exercise criminal jurisdiction.

c. Assure inapplicability of martial law.

d. Agree to continue current cooperative arrangements on other matters.

e. Expand competence of present Thai-US Coordinating Committee (despite Thai position reported A–544)³ to work out details of jurisdiction arrangements (that would be at least as favorable as Philippine arrangements) and to monitor continuation of current arrangements on other matters. Any impasse in the Coordinating Committee would be taken up at the Government level for resolution.

4. Accordingly, we believe hard question should now be put to the Thai, and our thought is to put it directly to Thanat along the following lines. (This could either take the form of a personal message from the Secretary, or you could make the initial presentation reserving the Secretaryʼs letter for later, if necessary. You are obviously in best position to judge the most effective tactics.)

a. I am concerned that our efforts to conclude a SOFA have apparently run into difficulties. I understand that your negotiators have indicated their inability to accept important aspects of the draft proposed by the United States principally on the ground that they require departures from the full operation of Thai law. The purpose of a SOFA is to provide a legal framework within which the Armed Forces of a friendly state can effectively carry out their mission. This inevitably involves modification of the host countryʼs law in order to accommodate this situation but does not mean the denigration of the sovereignty of the host country.

b. I understand that the criminal jurisdiction formula is pivotal to the conclusion of a status of forces arrangement. In the interest of moving these negotiations forward expeditiously and in the broader interest of the common objectives of the United States and Thailand in Southeast Asia, I am prepared to reexamine the United States proposal on criminal jurisdiction if it will resolve the present impasse. What I have in mind is a criminal jurisdiction article along the lines of our 1965 agreement with the Philippines. The article would also contain appropriate provisions exempting US forces from application of martial law. The agreement would, of course, recognize the duty of US forces to respect the law of Thailand and would provide for the concurrent exercise of criminal jurisdiction by Thai authorities and by American authorities through the convening of courts-martial in Thailand.

An arrangement along the foregoing lines is the farthest that the United States can go in dealing with the criminal jurisdiction article. We could not do more.

c. Criminal jurisdiction, however, is only one aspect of an over-all status of forces agreement. We also have a question, on the basis of the negotiations thus far, whether the Government of Thailand believes it is in a position to satisfy our requirements on other aspects of a status of forces agreement; and I would like your frank assessment on this. I am thinking here of such questions as necessary tax and customs exemptions, entry privileges, and other means of facilitating the operational mission of our forces, as are customarily found in status of forces arrangements elsewhere in the world.

d. If you do not believe it is possible to deal satisfactorily with criminal jurisdiction and with these other subjects in an overall status of forces agreement, perhaps we should consider a different approach to the problem. In that event, we would be prepared to enter into an agreement by exchange of notes that would deal only with the question of criminal jurisdiction and in briefer and more general terms than would be required in a formal status of forces arrangement. We would expect that such an exchange of notes would contain an assurance that with respect to other matters relating to the status of our forces in Thailand, the present satisfactory arrangements would continue. Ambassador Unger can explain the essentials of this exchange in more detail. (FYI: along lines para 3 above.)

e. I know that you have a concern that any agreement entered into should have some characteristics of reciprocity. I think that we can be helpful in this respect. We should be able, in an exchange of letters, to offer U.S. assistance to Thai forces in the exercise of their disciplinary jurisdiction in the United States. On this point, the kind of arrangement we could offer you is identical to the one we presently have with Australia.

f. There is another important matter encompassed in our draft status of forces agreement on which we would like to have some understanding. That is the question of the use of facilities and areas in Thailand. Such an understanding could be treated separately and consist simply of your assurance that United States forces would have the use of bases in Thailand as long as our two governments agree on the necessity and desirability of that use. That understanding need not necessarily be public; but we must be free to show it to interested members of our Congress, who quite understandably have been concerned at appropriating hundreds of millions of dollars for base expenditures in Thailand with no written understanding between our two Governments on the matter.FYI. Land acquisition costs may have to be injected at some point. End FYI.

5. Question of whether to disclose our alternate proposal for an exchange of notes on jurisdiction (para. 4.d. above) initially or whether to reserve it as fall-back position is also one which you are best able to judge, and which we leave to your discretion.

6. For Seoul and Taipei—Please advise if this approach to Thai will cause you problems with your SOFAs, and inform Bangkok soonest so that discussions with Thanat can start, if there are no insurmountable difficulties.

Rusk

1. Source: Department of State, Central Files, DEF 15–3 THAI–US. Confidential. Drafted by Salans; cleared with Colonel Ramundo of DOD/ISA, Eugene Herbert of L/EA, Spear, and Lawrence Hoover, Jr. of L/UNA; and approved by Bundy. Repeated to Seoul and Taipei.
2. Telegrams 6616, 6617, and 6618 from Bangkok, all November 28, contained Embassy recommendations and reasons behind its proposals for a draft SOFA. (All ibid.)
3. In airgram A–544, November 20, the Embassy reported that the Thai delegation accepted in principle the idea of a Joint Committee, but suggested the already established U.S.-Thai Coordinating Committee be enlarged, rather than a new committee created. (Ibid.)