Foreign Relations of the United States, 1964–1968, Volume XXIX, Part 1, Korea

83. Letter From the Assistant Secretary of Defense for International Security Affairs (McNaughton) to the Assistant Secretary of State for Far Eastern Affairs (Bundy)¹

Washington, April 9, 1966.

Dear Bill:

I do not concur in Ambassador Brown’s recommendation, addressed to both of us in Seoul’s 1102,² that we modify the criminal jurisdiction provision in the Korean Status of Forces Agreement. As you will recall, the present jurisdiction formula was very carefully worked out over a period of long negotiation as the most practical solution for meeting Korean political sensitivities on the one hand and for assuring the protection of our service personnel on the other. Although not the optimum solution from the Defense viewpoint, Secretary McNamara accepted, over service and JCS objections, Secretary Rusk’s recommendation that the German formula provides the best vehicle for accommodating Korean and United States needs on this difficult issue.

We also cannot accept Ambassador Brown’s understanding that there is no legal difference between the German formula, as now embodied in the Korean agreement, and the NATO-Netherlands arrangement he proposes to substitute. The Korean proposal (in effect, the NATO-Netherlands formula) was rejected because of the substantial differences between the German and NATO-Netherlands arrangements. Our Embassy was carefully instructed to emphasize these differences, i.e., the substantive and procedural requirements before a waiver recall may be effected under the German formula, in order to impress upon the Koreans that we expect great restraint in the recall of waivers. Nor can we agree that the German formula is discriminatory toward Korea. As its name implies, the German formula governs the exercise of jurisdiction over the large number of U.S. forces in the Federal Republic and should not be an unacceptable precedent in Seoul.

We also have indications that the Koreans would like to reopen other articles (e.g. the claims and labor articles).³ Any relaxation of our position that the negotiation is complete is certain to bring in its wake other Korean requests for the modification of provisions which already reflect minimum U.S. positions. I question the desirability of reopening the negotiation of issues on which the U.S. has very little give. It may, on balance, prove more embarrassing to the ROKG to be unsuccessful in an attempted renegotiation than to conclude the present agreement which has the obvious merits of reflecting a respectable precedent and being a decided improvement over the existing Taejon arrangement.

In our view, the foregoing considerations outweigh the grounds on which Ambassador Brown bases his proposal, and I suggest we send the attached reply.⁴

Sincerely,

John

1. Source: National Archives and Records Administration, RG 59, Central Files 1964–66, DEF 15–3 KOR S–US. Secret.
2. In telegram 1102 from Seoul, April 1, Brown detailed Korean concerns about the SOFA agreement. (Ibid.) An April 8 Intelligence Memorandum issued by the CIA, entitled “Pending US-South Korean Status-of-Forces Agreement,” also discussed the situation in Korea and the problems hindering Korean acceptance of the agreement. (Johnson Library, National Security File, Country File, Korea, Vol. III, November 1965 to December 1966)
3. In telegram 1172 from Seoul, April 18, the Embassy reported that the Korean Foreign Minister told Brown he wanted to reopen negotiations on all three disputed articles—criminal jurisdiction, claims, and labor. The request came in response to information received about the SOFA agreement reached between the United States and the Philippines, which, in the Foreign Minister’s view, had been given “preferred treatment on criminal jurisdiction” based on the NATO-Netherlands formula. (National Archives and Records Administration, RG 59, Central Files 1964–66, DEF 15–3 KOR S–US)
4. A note on the letter indicates the draft telegram to Seoul was not attached. It has not been found. Regarding the telegram as sent, see footnotes 2 and 4, Document 84.