Racial Hierarchy and Jurisdiction in U.S. Status of Forces Agreements

Abstract

Status of Forces Agreements (SOFAs) establish when and how the domestic laws of host governments are applied to American soldiers. Why does the United States share jurisdiction under some SOFAs but not others? I argue that U.S. SOFAs project a racialized conception of host state capacity for governance over American troops on foreign soil. It is through the notion of “capacity” that non-white host partners are stereotyped as possessing inferior courts and legal values. The United States is less likely to share jurisdiction with non-white majority host countries. I motivate my argument with primary accounts of racial discrimination in debates over U.S. SOFA policy. Then, I code U.S. SOFA jurisdiction and estimate its determinants. The results suggest that the United States imposes concurrent jurisdiction to govern its interactions with predominantly white host states, allowing these peer countries to try U.S. personnel, while withholding this same right from most non-white host partners, ceteris paribus. I conclude with a discussion of implications for understanding international law and security from its racial underpinnings.

Acknowledgements

This article reflects the generous feedback received on earlier versions of the paper from David Lake, Christina Schneider, Emilie Hafner-Burton, LaGina Gause, Marisa Abrajano, Jakana Thomas, Stephan Haggard, Adam Saxton, Zoltán Búzás, Richard Maass, participants of the UCSD International Organizations Group, the UCSD Race and Ethnic Politics Lab, the UCSD IR Workshop, and the Center for Peace and Security Studies (cPASS). I also thank participants at the 2021 and 2022 APSA Annual Meeting, the Race and Security Workshop at the University of Chicago, the 2021 National Conference of Black Political Scientists Conference, the University of Arizona School of Government & Public Policy Speaker Series, and the IDC Herzliya Lauder School of Government, Diplomacy & Strategy Democratic and Rule-of-Law Implications of Military Deployments Abroad Workshop. Lastly, I express my gratitude to Ronald Krebs, Jennifer Erickson, and each reviewer. This research was supported by the UC Office of the President and the UC Institute on Global Conflict and Cooperation (UCIGCC). The views in this article are those of the author and do not necessarily reflect the views of these colleagues, the UC Office of the President, or UCIGCC.

Data Availability Statement

The data and materials that support the findings of this study are available in the Harvard Dataverse at https://doi.org/10.7910/DVN/ZW46YI

Notes

1 “Report on Status of Forces Agreements,” International Security Advisory Board (ISAB), Washington, DC, (January 16, 2015): 1-60.

2 Youngjin Jung, and Jun-Shik Hwang, "Where Does Inequality Come From-An Analysis of the Korea-United States Status of Forces Agreement." Am. U. Int’l L. Rev. 18 (2002):1103.

3 Manuel EF Supervielle, "The legal status of foreign military personnel in the United States." Army Law. (1994): 3.

4 Senate, U. S. "Agreement regarding status of forces of parties of the North atlantic treaty: Supplementary hearing before the committee on foreign relations on, 83rd cong." (1953).

5 “263. Memorandum From Michael V. Forrestal of the National Security Council Staff to the President’s Special Assistant for National Security Affairs (Bundy),” Kennedy Library, National Security Files, Countries Series, Korea, General, 3/62-7/62. https://history.state.gov/historicaldocuments/frus1961-63v22/d263; “639. The Ambassador in Japan (Murphy) to the Director of the Office of Northeast Asian Affairs (Young),” Foreign Relations of the United States, 1952-1954, China and Japan, Volume XIV, Part 2. https://history.state.gov/historicaldocuments/frus1952-54v14p2/d639; “351. Memorandum of Discussion at the 378th Meeting of the National Security Council, Washington, August 27, 1958,” Foreign Relations of the United States, 1958-1960, Arab-Israeli Dispute, United Arab Republic, North Africa, Volume XIII. https://history.state.gov/historicaldocuments/frus1958-60v13/d351

6 “480 Memorandum by the Secretary of State and the Secretary of Defense (Lovett) to the President," Foreign Relations of the United States, 1952-1954, China and Japan, Volume XIV, Part 2. https://history.state.gov/historicaldocuments/frus1952-54v14p2/d480

7 Zoltán I Búzás, "Racism and antiracism in the liberal international order." International Organization 75, no. 2 (2021): 440-463.

8 Bianca Freeman, D. G. Kim, and David A. Lake, "Race in International Relations: Beyond the “Norm Against Noticing”." Annual Review of Political Science 25 (2022): 175-196.

9 Freeman, Kim, Lake, “Beyond the Norm.”

10 ibid.

11 Chuck R. Mason, "Status of Forces Agreement (SOFA): What is it, and how has it been utilized?" Library of Congress, Congressional Research Service, Washington, DC, (2012): 1-20.

12 Andrew I. Yeo, “Security, Sovereignty, and Justice in US Overseas Military Presence,” International Journal of Peace Studies 19, no. 2 (2014): 43-67; Mark E. Eichelman, "International Criminal Jurisdiction Issues for the United States Military." Army Law. (2000): 23; William J. Norton, "United States Obligations under Status of Forces Agreements: A New Method of Extradition." Ga. J. Int’l & Comp. L. 5 (1975): 1.

13 Erik Rosenfeld, "Application of US Status of Forces Agreements to Article 98 of the Rome Statute." (2003): 273.

14 In principle, see Jung, and Hwang, "Where Does Inequality,” 1119.

15 Jennifer Kavanagh, “US security-related agreements in force since 1955: Introducing a new database,” RAND Project Air Force, Santa Monica CA, (2014): 1-61.

16 Asif Efrat, "Troop crime in peacetime: Criminality and accountability of US Troops worldwide during the Cold war." Armed Forces & Society 48, no. 3 (2022): 657-678; Asif Efrat, "Facing US extraterritorial pressure: American troops in foreign courts during the Cold War." The Journal of Politics 84, no. 1 (2022): 242-257; Asif Efrat, "How to Handle Offending Troops Overseas: The US Military’s Legal Strategy during the Cold War." Armed Forces & Society 49, no. 2 (2023): 489-506.

17 “Vienna Convention on Diplomatic Relations of 1961,” United Nations, Treaty Series, vol. 500, p. 95, Vienna, 1961. https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

18 “Report on Status of Forces Agreements,” ISAB, 50.

19 “Report on Status of Forces Agreements,” ISAB.

20 for example, see U.S.-Botswana SOFA.

21 Additional explanations for nonreciprocity include unequal bargaining power and limited presence of foreign personnel on American soil, see Adam B. Norman, "The rape controversy: Is a revision of the status of forces agreement with Japan necessary." Ind. Int’l & Comp. L. Rev. 6 (1995): 717.

22 Supervielle, “The legal status.”

23 Norman, “The Rape Controversy.”

24 Freeman, Kim, Lake, “Beyond the Norm.”

25 David A. Lake, "Laws and norms in the making of international hierarchies." Hierarchies in world politics 144 (2017): 17; David A. Lake, Hierarchy in international relations. Cornell University Press, 2011.

26 Broad hierarchies manifest and reinforce themselves as deep patterns of inequality. By locating actors in relation to each other, broad hierarchy demarcates who and what belongs, ascribing to all a superior or inferior status, see Ayşe, Zarakol, eds. Hierarchies in world politics. Vol. 144. Cambridge University Press, 2017.

27 Siba N’Zatioula Grovogui, Sovereigns, quasi sovereigns, and Africans: Race and self-determination in international law. Vol. 3. U of Minnesota Press, 1996; Antony Anghie, "Decolonizing the Concept of." Good Governance”’, in Gruffydd Jones, B.(ed.), Decolonizing International Relations, Rowman and Littlefield, Lanham, MD (2006): 109-30.

28 Andy Baker, "Race, paternalism, and foreign aid: Evidence from US public opinion." American Political Science Review 109, no. 1 (2015): 93-109.

29 Freeman, Kim, Lake, “Beyond the Norm.”

30 The legalization of racial equality in the UN Charter constituted an apparent disassociation of international law from its colonial legacy. In reality however, domestic racism persists under the cover of law, in this case, U.S. extraterritoriality and its application in foreign policy. See Búzás, “Racism and Antiracism.”

31 Grovogui, Sovereigns; Siba N. Grovogui, "Regimes of sovereignty: International morality and the African condition." European Journal of International Relations 8, no. 3 (2002): 315-338.

32 For scholars of comparative law, the U.S. Court in China helps illustrate this point. The “unequal treaties” imposed on Qing dynasty China up until the 20th century institutionalized differential legal treatment of Western merchants and local Chinese populations based on ethnic identity. During its congressionally sanctioned tenure, the court held that China, as far as the status of Americans is concerned, is similar to that of an unorganized territory belonging to the United States. Throughout the 19th and early 20th centuries, Washington’s extraterritorial jurisdiction was frequently conflated with the legal status of colonies. In the case of the court, American judges were commonly assigned from U.S. territorial colonies. See Teemu Ruskola, “Colonialism without colonies: on the extraterritorial jurisprudence of the US Court for China,” Law and Contemporary Problems 71, no. 3 (2008): 217-242.

33 Lake, “Laws and Norms.”

34 John M. Hobson, and Jason C. Sharman, "The enduring place of hierarchy in world politics: Tracing the social logics of hierarchy and political change." European Journal of International Relations 11, no. 1 (2005): 63-98.

35 “Report on Status of Forces Agreements,” ISAB, 9,

36 “Report on Status of Forces Agreements,” ISAB, 17-18.

37 Status of Forces Agreement, Department of State, https://www.state.gov/subjects/status-of-forces-agreement/; Database of U.S. Security Treaties and Agreements (TL-133-AF), RAND, https://www.rand.org/pubs/research_reports/RR736.html

38 Some hosts maintain multiple U.S. SOFAs for various operational and political reasons that cover a range of issues relating to U.S. military installations overseas. Based on the availability of agreements, I collected and coded 254 agreements that specify jurisdiction between 1951-2020. That said, SOFA jurisdiction between host governments and the United States typically remains constant over time (with the exception of South Korea). Even when SOFAs are renegotiated or overridden by new status agreements, they often inherit the division of legal authority initially set between sending and receiving state. According to the ISAB, it is not clear when a SOFA goes out of force. Moreover, the U.S. government operates its SOFA efforts without a comprehensive or accessible archival database of all existing agreements, 39.

39 The EPR-ED variable for race identifies multiple markers of origin on the individual level, a choice that reflects the data’s constructivist understanding of race as a social category. Where the data identify more than one racial segment, the EPR-ED advised to treat these segments as one combined racial dimension; Nils-Christian Bormann, Lars-Erik Cederman, and Manuel Vogt, “Language, Religion, and Ethnic Civil War.” Journal of Conflict Resolution 61(4), (2017): 744–71.

40 Moreover, both likely differ from how race is measured in this article. For example, the “white” coding for several host countries in Central and South America reflects the European-origin majority of the population. This decision was made based on the literature and data available, though at the expense of a more nuanced measure of race in Latin America. While I focus on the United States’ projection of race onto host countries, coding racial categories would ideally account for the politics self-determination, colonialism, and U.S. intervention among other dynamics.

41 Michael Coppedge, John Gerring, Carl Henrik Knutsen, Staffan I. Lindberg, Jan Teorell, Nazifa Alizada, David Altman et al. "V-Dem dataset v11. 1.” (2021).

42 Jeffrey Staton, Drew Linzer, Christopher Reenock, Jordan Holsinger, "Update, A Global Measure of Judicial Independence, 1900-2015”, + (2019), https://doi.org/10.7910/DVN/NFXWUO, Harvard Dataverse, V1, UNF:6:WO2IMcRMrcGvGhtJZCYs1A== [fileUNF]

43 Greig, M., and A. J. Enerline. "Correlates of War Project, National Material Capabilities (NMC) Data Documentation (Version 5.0) period covered: 1815-2012." Department of Political Science, University of North Texas (2017).

44 Michael A. Allen, Michael E. Flynn, and Carla Martinez Machain. "US global military deployments, 1950–2020." Conflict Management and Peace Science 39, no. 3 (2022): 351-370.

45 Michael A. Bailey, Anton Strezhnev, and Erik Voeten. "Estimating dynamic state preferences from United Nations voting data." Journal of Conflict Resolution 61, no. 2 (2017): 430-456.

46 The model allows a fully general structure w.r.t. heteroskedasticity and serial (cross–sectional) correlation, see Manuel Arellano, "Computing robust standard errors for within-groups estimators." Oxford bulletin of Economics and Statistics 49, no. 4 (1987): 431-434.

47 Paul Allison, "Logistic regression for rare events." Statistical Horizons 13 (2012); Andrew Gelman et al., “A Weakly Informative Default Prior Distribution for Logistic and Other Regression Models,” Annals of Applied Statistics 2, no. 4 (2008): 1360–83; and Erik Gartzke, and Jon R. Lindsay, "The influence of sea power on politics: domain-and platform-specific attributes of material capabilities." Security Studies 29, no. 4 (2020): 601-636.

48 Michael A. Allen, Michael E. Flynn, Carla Martinez Machain, and Andrew Stravers. Beyond the Wire: US Military Deployments and Host Country Public Opinion. Oxford University Press, 2023.

49 Yeo, “Security, Sovereignty.”

50 Yeo, “Security, Sovereignty,” 57.

51 Alexander Cooley, Base politics: democratic change and the US military overseas. Cornell University Press, 2012.

52 Alexander Cooley, and Hendrik Spruyt, "Contracting states." In Contracting States. Princeton University Press, 2009.

53 Yeo, “Security, Sovereignty,” 49.

54 ibid.

55 ibid.

56 Allen, Flynn, Martinez, and Stravers, Beyond the Wire.

57 “Annual Reports,” United States Court of Appeals for the Armed Forces, Washington, DC, https://www.armfor.uscourts.gov/ann_reports.htm

58 “480 Memorandum.”

59 Amoz JY Hor, “NATO was founded to protect ‘civilized’ people. That means white,” The Washington Post, April 22, 2022, https://www.washingtonpost.com/politics/2022/04/11/nato-ukraine-refugees-whiteness/; Zoltán I. Búzás, "The color of threat: Race, threat perception, and the demise of the Anglo-Japanese Alliance (1902–1923)." Security Studies 22, no. 4 (2013): 573-606.

60 “Agreement Regarding Status of Forces.”

61 “480 Memorandum.”

62 “480 Memorandum.”

63 ibid.

64 ibid.

65 ibid.

66 ibid.

67 ibid.

68 ibid.

69 ibid.

70 According to Japanese Foreign Minister Mamoru Shigemitsu, the initial 1951 agreement “subjugated” Japan to a lesser position than its American counterpart. Efforts for revision, led by Shigemitsu, challenged the United States’ unilateral determination over the employment of its forces, as detailed in a 1957 white House memorandum of a conversation between Japanese Prime Minister Kishi and President Eisenhower. When John Foster Dulles finally came to the table, he explained to Shigemitsu that revision was “premature” because Japan lacked “the unity, cohesion, and capacity to operate under a new treaty arrangement.” See “183. Memorandum of a Conversation, white House, Washington, June 19, 1957, 11:30 a.m.,” Foreign Relations of the United States, 1955-1957, Japan, Volume XXIII, Part 1 https://history.state.gov/historicaldocuments/frus1955-57v23p1/d183; Nick Kapur, Japan at the crossroads: Conflict and compromise after Anpo. Harvard University Press, 2018.

71 The U.S.-South Korea SOFA is a similar case.

72 Hor, “NATO was founded.”

73 John W. Dower, Embracing defeat: Japan in the wake of World War II. WW Norton & Company, 2000.

74 Critical and theoretical work on race in IR has existed for a long time, though grossly ignored, see Robbie Shilliam, "Race and racism in international relations: Retrieving a scholarly inheritance." International Politics Reviews 8, no. 2 (2020): 152-195; Errol A. Henderson, "Hidden in plain sight: racism in international relations theory." Cambridge Review of International Affairs 26, no. 1 (2013): 71-92; Meera Sabaratnam, "Is IR theory white? Racialised subject-positioning in three canonical texts." Millennium 49, no. 1 (2020): 3-31.

75 Phillip Y. Lipscy, and Jiajia Zhou. "Institutional Racism in International Relations." Available at SSRN (2022): 1-44.

76 Cooley, Base politics; Sebastian, Schmidt, Armed guests: Territorial sovereignty and foreign military basing. Oxford University Press, USA, 2020; Michael A. Allen, Michael E. Flynn, Carla Martinez Machain, and Andrew Stravers. "Outside the wire: US military deployments and public opinion in host states." American Political Science Review 114, no. 2 (2020): 326-341; Alex Braithwaite, and Jeffrey Kucik. "Does the presence of foreign troops affect stability in the host country?." Foreign Policy Analysis 14, no. 4 (2018): 536-560; Charmaine Willis, "The right frame of mind? An analysis of global anti-US-military protests." An Analysis of Global Anti-US-Military Protests (September 1, 2019) (2019); Sue-Je L., Gage, “We’re Never Off Duty”: Empire and the Economies of Race and Gender in the US Military Camptowns of Korea." Cross-Currents: East Asian History and Culture Review 1, no. 6 (2013).

77 Efrat, “Troop crime in peacetime”; Efrat, “Facing US Extraterritorial Pressure”; Efrat, “How to Handle.”

78 Yeo, “Security, Sovereignty”; Kelly Elizabeth O'Connor, "Couching intervention: norms, interests, and trends in jurisdictional allocation in Status of Forces Agreements (SOFAs)." PhD diss., Massachusetts Institute of Technology, 2018; Aubree Herrin, “Understanding status of forces agreements: what shapes jurisdictional control?” PhD diss., The University of Iowa, 2020.

79 Alexander Cooley, and Daniel H. Nexon, "“The empire will compensate you”: the structural dynamics of the US overseas basing network." Perspectives on Politics 11.4 (2013): 1034-1050.

Additional information

Notes on contributors

Bianca Freeman

Bianca Freeman is a PhD candidate in the Department of Political Science at the University of California San Diego, La Jolla, California, USA; email: [email protected].