97. Action Memorandum From the Assistant Secretary for Far Eastern Affairs (Bundy) to Secretary Rusk1
SUBJECT
- Request for Authority Under Circular 175 to Sign a Status of Forces Agreement with the Republic of China
Discussion:
Article VII of the Mutual Defense Treaty between the United States and the Republic of China, which entered into force on March 3, 1955, provides for the stationing of United States forces in and about Taiwan “as determined by mutual agreement.” Discussions with the GRC concerning a status of forces agreement were begun in 1955 but were interrupted by the Taipei riot of 1957 and the Straits crisis of 1958. In 1959 authority to negotiate an agreement was granted by the Acting Secretary to the Ambassador to China, with the understanding that authority to sign the agreement would be sought when negotiations were concluded (Tab A).2 On July 30, 1965 the United States and the Republic of China jointly announced the conclusion of negotiations.
[Page 194]Attached (Tab B) is the English text of the agreement which will be the basis for final agreement.
The twenty article agreement is modeled on the basic NATO status of forces formula, tailored to fit the particular situation in Taiwan. It provides that the United States will bear the cost of the maintenance of its forces, while the Republic of China will furnish facilities and areas and rights of way. The United States is to receive utilities and services at rates and under conditions which are no less favorable than those of any governmental agency of the Republic of China. United States personnel are to enjoy freedom of entry and exit, exemption from local taxes, and exemption from customs duties provided that personal items are brought into the agreement area (Taiwan and the Pescadores) within six months of the person’s initial arrival, or are purchased or obtained thereafter through a United States operated exchange, commissary, or military post office, or under certain other specified conditions.
The jurisdiction article is patterned after the Supplementary Agreement between the United States and Germany. In the minutes to be published with the agreement the Republic of China agrees to waive its primary jurisdiction but reserves the right to recall such waiver in specific cases where major interests of Chinese administration of justice make the exercise of Chinese jurisdiction imperative, particularly in cases of security offenses against the Republic of China, offenses causing the death of a human being, robbery and rape.
In a separate exchange of letters, the cases in which the Chinese Government could recall its waiver are limited solely to the following: security offenses against the Republic of China, offenses causing the death of a human being, narcotics offenses, robbery, rape and arson. By limiting Chinese jurisdiction to these offenses, the United States personnel are protected against the operation of the Special Laws (tantamount to martial law) presently in effect in Taiwan. It is also provided that United States personnel will not be tried in Chinese military courts.
The jurisdiction article provides further that the United States shall have the right to custody of an accused person until the completion of all judicial proceedings. The Chinese have agreed to comprehensive trial safeguards and to the conclusiveness of United States duty certifications in determining primary jurisdiction. Under the agreed minutes the adequacy of Chinese confinement facilities will be a matter of joint agreement between United States and Chinese authorities. A Joint Committee is to be formed by the two governments to assist in implementing the agreement.
The claims article provides for unilateral settlement of claims by the United States, with the Chinese having the option to turn to the standard NATO claims formula should they find United States unilateral settlement procedures unsatisfactory.
[Page 195]A memorandum summarizing the provisions of the agreement was transmitted to the staffs of the Senate Foreign Relations and the House Foreign Affairs Committees on July 28.
Recommendation:
That you authorize signature by our Ambassador at Taipei, or by the Chargé d’Affaires, of the Status of Forces Agreement which has been negotiated with the Republic of China, based on the attached text and subject to approval of the final text by the Assistant Secretary for Far Eastern Affairs or his deputy with the prior concurrence of the Office of the Legal Adviser, Congressional Relations, and the Department of Defense.3
- Source: Department of State, Central Files, DEF 15–3 CHINAT-US. Confidential. Cleared by Fearey, Deputy Legal Adviser Richard D. Kearney, Eleanor C. McDowell of L/T, G.H. Aldrich of L/FE, George L. Warren of G/PM, Deputy Assistant Secretary for Congressional Relations John P. White, in draft by Eugene T. Herbert of L/FE and Colonel Ramundo of DOD/ISA/FMRA, and in substance by Rubin of DOD/OSD/GC.↩
- The tabs are attached but not printed.↩
- Thompson initialed his approval on August 24. The agreement was signed at Taipei on August 31; for the text, see 17 UST 373.↩