21. Letter From the Ambassador to Korea (Brown) to the Assistant Secreatary of State for Far Eastern Affairs (Bundy)1
- Status of Forces, Embassy Airgram A–133, September 1, 19642
As you well know, one of our major current projects in Seoul is the negotiation of a Status of Forces Agreement. Since arriving here, I have been able to take a thorough look at these negotiations, which have been in course for two years. I find that they have now reached the stage at which the fundamental unresolved issue of waiver must be resolved or the negotiations will become deadlocked. I have just come out of a meeting with the Country Team in which we have approved a recommendation with respect to that issue which we hope may make agreement possible. This recommendation is contained in Airgram A–133.
While there are a number of unresolved differences of position, the determinative question now at issue is the very simple one of whether we continue to insist on an automatic advance waiver of jurisdiction by the Koreans in all criminal cases in which they have the right of primary jurisdiction. We have not asked, or at least we have not obtained, such a provision in any other Status of Forces Agreement to which we are a party.
All concerned here, including General Howze and his colleagues who have worked on this problem, are convinced that our proposed modification will adequately protect US interests. All of our negotiators are convinced that if we insist upon automatic advance waiver there will be no agreement. They do not think that a recess of negotiations will or can affect this basic situation.
Even after my short stay here, I do not see how any Korean government could defend in the Assembly the acceptance of such a waiver provision, involving as it does a relinquishment of sovereignty to an extent greater than that of any other country, including Japan, in which we have forces.
It is our desire to see this government negotiate and put into effect a settlement with Japan. To do so it needs every additional measure [Page 46]of public and legislative support which it can earn or otherwise obtain. Conclusion of a satisfactory SOFA will be a feather in its cap. Acceptance of our present waiver provision would almost certainly lead to its defeat on a major issue, if not to its downfall.
Allowing the negotiations to drag on fruitlessly would be harmful to both the government and ourselves, particularly if, as is most likely, the respective positions of the parties on the issue dividing us become known. This year we have already had student demonstrations protesting almost every issue except the SOFA negotiations. Should these negotiations now break down, it is not at all difficult to envisage future student demonstrations protesting U.S. “insincerity.”
What we propose in essence in our Airgram is that the Koreans agree in advance to grant our request for a waiver except in cases in which the ROK Government has a special interest. In our judgment these cases would be rare. However, provision would be made for a review, first by the Joint Committee which is to be set up to implement the agreement, and later by diplomatic negotiation, if necessary. If these consultations failed, the Koreans would not have to grant the waiver. We would, however, under the provision as we propose it, retain custody of the accused before, during, and after trial and through all appeal procedures. If we were convinced that someone was really being railroaded we could simply ship him out of the country, undesirable as this action would be.
Airgram A–133 was reviewed and approved by the Country Team. Because of the military chain of command, General Howze was unable to concur formally, but has informed CINCPAC of his agreement with the Embassy message. I have informally given Admiral Sharp my views during his recent visit to Korea.
Thus the position is that General Howze, all of his colleagues, and the Embassy are convinced that the provision we propose would adequately protect our personnel. We are equally convinced that insist- ence on automatic advance waiver will mean that there will be no agreement. We believe that the terms we propose, if accepted, will result in an agreement more satisfactory than SOFA’s we have with other countries. We think that prompt conclusion of a SOFA is in our interest. We therefore bespeak your sympathetic consideration of our recommendation and favorable action on it.3
- Source: National Archives and Records Administration, RG 59, Central Files 1964–66, DEF 15–3 KOR S-US. Confidential; Official-Informal. At the top of this document Bundy added a handwritten notation to Green: “MG—for your use. I gather Bob [Fearey] hopes to pull this together. WPB.”↩
- Airgram A–133 from Seoul contained the Embassy’s evaluation of the status of the SOFA negotiations and its examination of the Criminal Jurisdiction Article. (Ibid.)↩
- The Department of State accepted the Embassy’s approach to the issue, but redrafted the proposal to combine “an automatic advance waiver formula with a right of recall by the Korean authorities under certain specified circumstances.” The approach combined the formula contained in the SOFA agreement with the Federal Republic of Germany and the Republic of China. (Airgram A–86 to Seoul, December 1; ibid.)↩