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- Commentary: The SOFA's Environmental Clause Must Be Fully Amended
Lee Jahng-hee, Professor of Law School,
Hankuk University of Foreign Studies
Media reports on May 19 contained shocking testimony that United States Forces in Korea (USFK) buried 250 drums, the equivalent of 52 tons, of defoliant in 1978 at Camp Carroll US military base in Waegwan, North Gyeongsang Province.
The defoliant secretly buried at Camp Carroll was "Agent Orange." If the testimony is confirmed, it appears that this will become a serious case of pollution. Agent Orange contains dioxin, the most toxic substance produced by humans and 10,000 times more toxic than potassium cyanide.
The attention of the Korean people is now focused on whether Korea will be allowed free access to the polluted area of the base, whether it will be able to conduct an accurate investigation, and whether it will be able to adequately treat the victims.
The legal basis for solving these problems is the article of the Status of Forces Agreement (SOFA) between Korea and the United States that relates to the environment. The environment clause was added to the SOFA in 2001, prompting high expectations among the Korean people of joint investigations of pollution on US military bases and good treatment of its victims.
The Korean people have been left highly disappointed, however, by the fact that the SOFA's new environmental regulations are part of a special memorandum of understanding, the character of which is merely proclamatory, and that all procedures are subject to the agreement of a joint Korean-US committee.
According to the SOFA, moreover, the US military possesses exclusive jurisdiction over all facilities and land within US bases in Korea. The new environmental article added to the SOFA in 2001 consists of Clause 2 of Article 3 of the SOFA document, and a special memorandum of understanding on environmental protection.
The former constitutes mutual recognition of the importance of protecting the environment in connection with joint defense activity by Korea and the United States. It states that the US side will respect Korea's environmental laws and that Korea will take the safety of the US military into appropriate consideration.
The latter consists of an agreement on environmental standards, exchange of information and access to USFK bases, results of environmental performance, and environmental problems.
An expanded explanation of this shows it to be distorted in a way that makes Korea appear to be at fault: US military environmental management guidelines are to be reviewed and/or supplemented every two years, or as occasion demands; procedures are to be drawn up for exchange of information related to the environment, and for access for relevant individuals to US military bases; assessments of environmental management will be conducted and important pollution removed; Korea has a duty to take measures regarding pollution outside bases that affects the US military.
These things too, moreover, must take place only after agreement has been obtained from the joint SOFA committee.
More specifically, the problem with the SOFA's environmental clause is that it does not stipulate punishment for environmental pollution in accordance with Korean environmental law; it does not state clearly that the polluter must be responsible for completely cleaning up pollution and paying the clean-up costs; and it denies Korea's right to investigate in advance predictable environmental pollution and to take charge once pollution has taken place.
The criteria applied for medically treating victims of pollution are those of the US, not Korea, making actual treatment for Koreans impossible.
US treatment standards refer to pollution caused by the US military that presents known, imminent and substantial danger to human health. In 1992, faced with global pressure regarding pollution by the US military, the US State Department issued guidelines for overseas pollution. The guidelines give specific environmental guidance in 19 categories.
In 1997, too, USFK drew up environmental standards for itself. These standards, however, make many exceptions and are therefore, in practice, ineffective.
Such exceptions include: 1) US military warships, aircraft carriers and aircraft that are subject to international treaties and policies and orders from the Department of Defense; 2) nuclear-related programs under tactical orders from the president and 3) decisions on and enforcement of activity to clean up environmental pollution due to past activity by the US military.
In other words, this applies to everyday pollution, but not to environmental pollution resulting from tactics such as military training.
Cases where these environmental standards may be abandoned, moreover, are defined as: 1) when their observance presents great difficulty to military operations; 2) when they have an adverse effect on the US military's relationship with Korea; and 3) when large sums of money or other resources needed for a recovery effort cannot be secured.
Such ambiguous exceptions mean that the US military can decide at any time, at its own discretion, that its environmental standards do not apply.
Ultimately, the environmental article created by the 2001 amendment to the SOFA, which gives constant special favors to the US military and its facilities in Korea, cannot protect Korea's land and people from pollution by US military bases.
Even if Koreans agree with assessments of the US military's presence in Korea, there must be a clearly stated article on the duty to punish environmental crimes it commits, and on the fact that Korean environmental law also applies inside US military bases.
Legal control regarding acts of environmental destruction by the US military, as well as its duty to restore polluted areas to their original state, must be indicated.
The 2001 SOFA environment article, which fails to reflect such popular demands, must be amended to the level of the German supplementary agreement through wholesale renegotiation. (Opinion, The Kyunghyang Daily News. June 2, 2001)
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