SOFA 제4조와 환경손해 : 원상회복의무와 손해배상의무에 관하여 = Article 4 of Status of Forces Agreement and environmental contamination: a distinction between restoration and compensation

다국어 초록 (Multilingual Abstract)

Environmental contamination caused by overseas installations of United States armed forces has so far been discussed mainly as a topic for international environmental law. This article takes a different approach. It is suggested that environmental damage caused by United States armed forces stationed in a host country should first of all be dealt with in accordance with the laws and regulations of the host country. In Korea, just as in Japan or in Germany, the status of US armed forces stationed within Korean territories is regulated by a mutual agreement (SOFA). Apart from clearly defined privileges and immunities expressly granted by the agreement, the US armed forces stationed in Korea cannot lay any proprietary or territorial claim over the areas and facilities they use. Laws and regulations of Korea would thus apply to those areas and facilities (see Article 7 of SOFA). Any damage, including environmental contamination, to the areas and facilities will therefore give rise to civil claims which must be handled in accordance with Article 23 of SOFA and any applicable Korean laws and regulations. Article 4 of SOFA, however, provides that the US government is not obliged to restore the areas and facilities or to compensate in lieu of such restoration . Some writers have suggested that this provision would exempt the US government from civil liability for environmental contamination to the areas and facilities. The present author proposes a different interpretation. In Korea as well as in the US, restoration and compensation are distinct legal concepts. Their ordinary meanings differ as well. As a general rule, a party causing damage to other s property will be held liable to compensate (pay damages), rather than to restore the property. Article 4 of SOFA merely relieves the US from the duty to restore ; it does not relieve the US from tortious or statutory liability to pay damages which has nothing to do with any duty to restore. In the absence of any clear and unequivocal clause which expressly exempts the US from the duty to pay damages, it would be wrong to conclude that Korea has intended to waive all claims for damages in respect of loss occurred to the areas and facilities. Whether the US has improved or damaged the areas and facilities, it is not obligated to restore . But that does not mean that the US is entitled to cause damage and loss to the areas and facilities with impunity. This interpretation, it is suggested, is based on comity and equality of parties to SOFA and on generally accepted rules of interpretation applicable to international treaties.

목차 (Table of Contents)

• Ⅰ. 배상청구권의 행사 - SOFA 제23조 Ⅱ. 환경손해에 적용될 실체법 - ‘국제환경법’의 적용여부 Ⅲ. SOFA 제4조 제1항 Ⅳ. 맺는말

참고문헌 (Reference)

1 "주한미군과 환경문제"

2 "‘주한미군기지로부터의 환경오염피해에 대한 법적 규제’" 4 (4): 1997

3 "‘손해배상의 범위와 방법/손해배상책임의 내용" (15) : 1997

4 "‘손해배상의 방법으로서의 원상회복’" 10 (10): 2003

5 "‘손해배상의 방법 - 그 원칙과 예외’" 2003

6 "‘민사청구권의 문제점과 개정방향’" 5 (5): 1998

7 "‘금전배상이외의 손해배상과 그 적용례’" 고려대학교 법학연구소 33 : 1997

8 "‘The former U.S. bases in the Philippines An argument for the application of U.S. envionmental standards to overseas military bases’" 1994

9 "‘The Vienna Convention on the Law of Treaties in U.S. treaty interpretation’" 431 : 2004

10 "‘Restrictive interpretation and the principle of effectiveness in the interpretation of treaties’ 26 British Yearbook of International Law 48" 1949

11 "‘Interpretation of international agreements by domestic courts and the politics of international treaty relations’" 559 : 1996

12 "‘Holding the United States Accountable for Environmental Damages Caused by the U.S. Military in the Philippines a Plan for the Future’" 245 : 2003

13 "‘Environmental Injustice on United States Bases in Panama International Law and the Right to Land Free form Contamination and Explosives’" 401 : 1998

14 김성수, "`국내 환경법의 국제적 적용'" 10 : 2003

15 "The law of contract" 1999

16 "The Law of Nations" 1883

17 "Principles of Public International Law" 2003

18 "'Environmental Law for Overseas Installations'" 49 : 1996