This Note argues that the Korea SOFA illustrates how the current approach to implementing SOFA agreements hinder state parties from complying with their legal obligations under article 2 of the ICCPR. Part I first provides an overview of the two competing bodies of international law at issue: the law governing the U.S. approach to foreign criminal jurisdiction, on the one hand, and the development of human rights law and the terms of article 2 of the ICCPR, on the other. Part II assesses the incompatibility between ICCPR and SOFA obligations from the point of view of both receiving and sending states--from the perspective of the ROK and the United States, respectively. Part III rounds out the discussion with recommendations for how both the ROK and the United States can harmonize the implementation of the Korea SOFA with their obligations under the ICCPR. Finally, this Note concludes with some general points on the importance of reconciling this conflict of obligations, and the larger implications for the viability and the legitimacy of U.S. military operations overseas.
Rijie Ernie Gao,
Between a Rock and a Hard Place: Tensions Between the U.S.-ROK Status of Forces Agreement and the Duty to Ensure Individual Rights Under the ICCPR ,
33 Fordham Int'l L.J. 585
Available at: http://ir.lawnet.fordham.edu/ilj/vol33/iss2/7