SORT: 5530.03
DOCI: DODD 5530.3
DATE: 19870611
TITL: DODD 5530.3, International Agreements, June 11, 1987, GC, DoD, Thru Ch 1,
February 18, 1991
Refs: (a) DoD Directive 5530.3, subject as above, December 6, 1979 (hereby
canceled)
(b) DoD Instruction 2050.1, "Delegated Approval Authority to Negotiate and
Conclude International Agreements," July 6, 1977 (hereby canceled)
(c) DoD Directive 3310.1, "International Intelligence Agreements," October
22, 1982, (hereby canceled)
(e) through (n) see enclosure 1
A. REISSUANCE AND PURPOSE
This Directive:
1. Supersedes and consolidates references (a), (b), and (c) to take into
account regulations published by the Department of State (enclosure 3) to
implement the Case Act (enclosure 4), and to accommodate organizational
changes within the Office of the Secretary of Defense (OSD).
2. Revises DoD procedures to implement the Case Act (enclosure 4) as
interpreted by the Department of State (DoS) (enclosure 3).
3. Assigns responsibilities for central repositories of international
agreements within the Department of Defense.
4. Assigns responsibility for controlling the negotiation and the
conclusion of agreements with foreign governments and international
organizations by personnel of the Department of Defense, its components,
commands, or other organizational elements.
5. Assigns the authority to approve or conduct such negotiation and
conclusion, or to delegate such authority for specified categories of such
agreements.
6. Establishes procedures by which such approval shall be obtained before
the initiation of negotiations.
7. Establishes procedures concerning resolution of questions of compliance
by parties to international agreements within the scope of this Directive.
B. APPLICABILITY AND SCOPE
This Directive applies to:
1. The OSD, the Military Departments, the Organization of the Joint Chiefs
of Staff (OJCS), the Unified and Specified Commands, the Inspector
General, Department of Defense (IG, DoD), and the Defense Agencies
(hereafter referred to collectively as "DoD Components").
2. Those international agreements concerning matters within the functional
responsibilities of any DoD Component.
C. DEFINITIONS
The terms used in this Directive are defined in enclosure 2.
D. RESPONSIBILITIES
1. The General Counsel of the Department of Defense (GC, DoD) is
responsible for sections C. through K., above and below, of this
Directive.
2. The Under Secretary of Defense for Policy (USD(P)) is responsible for
sections L. and M., below, of this Directive.
E. CENTRAL REPOSITORIES
1. Except for agreements referred to in paragraphs E.2.a. or E.2.b.,
below, two reproducible copies of each international' agreement shall be
sent to the GC, DoD (Washington, D.C. 20301-1600), by the single office of
record for the DoD Component responsible for the agreement not later than
20 days after the agreement enters into force. Unless one of the two
copies is the original, each of the copies shall be certified to be a true
copy of the original agreement. Copies may be certified by any officer or
U.S. civilian employee authorized by U.S. law to administer oaths or to
make acknowledgments. A background statement meeting the requirements of
enclosure 3 and in the format of enclosure 6 shall accompany the
transmitted text.
2. The GC, DoD, shall maintain the central repository (including an index
updated at least once per year) for all international agreements and
accompanying legal and fiscal memoranda when required, which are
coordinated, negotiated, or concluded by DoD personnel, other than:
a. Agreements in the intelligence field.
b. Standardization agreements, excluded from the provisions of this
Directive at enclosure 2.
3. The Defense Intelligence Agency (DIA) and the National Security Agency
(NSA) each shall maintain a central repository of international agreements
in the intelligence field that are coordinated, negotiated, or concluded
on its behalf. The repository office shall maintain an index of all such
agreements; a copy of the updated index, including all agreements that
entered into force or were amended during the previous calendar year
(except for sensitive or compartmented agreements, as determined by GC,
DIA and GC, NSA), shall be provided to the GC, DoD by January 31 of each
year. The index shall include, at a minimum,
a. The title of the agreement.
b. The name of the country with which the agreement has been concluded.
c. The date the agreement entered into force.
d. A brief statement of the general purpose of the agreement.
e. The date of expiration of the agreement.
For sensitive or compartmented agreements, GC, DIA and GC, NSA shall make
separate arrangements with the GC, DoD to ensure that cognizance of such
agreements is maintained.
4. When a question arises as to whether a document or set of documents
constitutes an international agreement as defined in enclosure 2, such
document or documents shall be treated as an international agreement and
processed in accordance with sections E. above, F., and G., below. The DoS
shall make the final determination of this question as specified in
subsection G.4., below.
F. PROCEDURES
1. Delegated authority to approve the negotiation and conclusion of
international agreements, including the institution of summary procedures
referred to in subsection 1.1., below, shall be accomplished through DoD
Component regulations implementing this Directive. The standard procedures
in section l., below, shall be used by OSD officials in exercising their
delegated authority to grant or deny requests for authority to negotiate
and conclude international agreements.
2. Delegated authority to approve the negotiation and conclusion of
international agreements shall be exercised in full consultation with
other DoD Components having an interest in the subject, as follows:
a. Before negotiation, military commands and other DoD organizational
elements assigned to or located within the geographic areas of
responsibility of Unified Commands shall advise the appropriate Unified
Commands of any international negotiations that might have significant
impact on the plans and programs of such commands, and shall furnish them
with a copy of each agreement upon its conclusion.
b. Before negotiation, other organizations that negotiate an agreement
that might have a significant impact on the Unified and Specified Commands
shall so advise the OJCS or the military command concerned, as
appropriate, and shall furnish them with a copy of each agreement upon its
conclusion.
c. Those agreements in subsections M.l. and M.2., below, which involve
significant changes in logistic support for U.S. Armed Forces (including
base adjustments) with an impact on joint plans and programs, shall be
coordinated with the OJCS or its designee.
d. Security provisions for agreements involving or likely to involve the
release of classified military information, classified technology, or
classified materiel shall be coordinated with the Deputy Under Secretary
of Defense (Policy), (DUSD(P)), before making any commitment to
representatives of a foreign government or international organization.
Such agreements shall be consistent with the National Disclosure Policy
(NDP-1) and shall meet the conditions for release provided therein.
e. Before negotiation, agreements that have potential impact on the
development or procurement of standardized weapon systems or equipment
within NATO shall be coordinated with the Under Secretary of Defense
(Acquisition) (USD(A)) and the Assistant Secretary of Defense for
International Security Policy (ASD(ISP)) as early in the development or
procurement stage as possible. DoD Directive 2010.6 (reference (d))
provides policy guidance on NATO standardization.
f. Nothing in this Directive rescinds or limits the authorities and
responsibilities assigned to the Director, Defense Security Assistance
Agency (DSAA), under DoD Directive 5105.38 (reference (e)). Any agreements
involving Security Assistance programs shall be coordinated with the
Director, DSAA.
3. Nothing in sections H., L., or M., below, shall be construed as
altering such authorities as may be delegated in other DoD Directives or
Instructions to the heads of organizational elements of the OSD or other
DoD Components to develop and prescribe DoD positions, policies, and plans
for carrying out their functional responsibilities. DoD officials
authorized under this Directive to conduct negotiations shall ensure that
negotiations are conducted in accordance with such positions, plans, and
policies.
4. Within the Office of the Under Secretary of Defense for Policy
(OUSD(P)):
a. The Communications Management Division is designated as the single
office of record for receiving requests submitted under paragraph J.l.a.,
below, for authority to negotiate or conclude an international agreement.
b. The responsibilities of USD(P) under subsections L.2. and L.3., below,
the functions outlined in paragraphs J.l.b. through J.1.e., below, the
approval authority under section I., below, which has not been delegated
in section N., below, and the approval authority under subsection H.4.,
below, normally shall be exercised by the cognizant Deputy Under Secretary
of Defense (DUSD), Deputy Assistant Secretary of Defense (DASD) or by a
Director not reporting to a DUSD or DASD for matters falling within the
responsibility of that individual.
c. Staff responsibility for the implementation of Sections L and M.,
below, of this Directive is assigned to the Director, Office of Foreign
Military Rights Affairs.
G. CASE ACT IMPLEMENTATION
1. The Case Act (enclosure 4) provides that, notwithstanding any other
provision of law, an international agreement may not be signed or
otherwise concluded on behalf of the United States without prior
consultation with the Secretary of State.
a. Responsibility for consultation with the DoS (or the the National
Security Council (NSC), as may be required by applicable law or
regulation) before approval authority is granted to negotiate or conclude
such an international agreement is vested in the USDP for all agreements
for Which approval authority has not been redelegated under section M.,
below of this Directive and in the Head of each DoD Component, or
designee, to whom approval authority has been redelegated under section
M., below, of this Directive, for all agreements covered by the applicable
redelegation.
b. Questions concerning the requirement to effect such coordination shall
be referred to the GC, DoD.
2. A DoD Component that enters into an international agreement (other than
intelligence agreements) shall transmit the text of the agreement directly
to the Assistant Legal Adviser for Treaty Affairs, DoS, and to the GC, DoD
(Washington, D.C. 20301-1600), not later than 20 days after the agreement
enters into force. If the transmitted text is a copy of the original, the
copy shall be certified to be a true copy of the original. If the text of
the agreement is transmitted more than 20 days after its entry into force,
the transmittal document shall fully and completely describe the reasons
for the late submission. A background statement meeting the requirements
of enclosure 3, and in the format of enclosure 6, shall accompany the
transmitted text.
3. Except for NSA, a DoD Component that enters into an international
intelligence agreement, within 15 days after conclusion of the agreement,
shall provide DIA with one complete reproducible copy of the agreement
along with a background statement meeting the requirements of enclosure 3
and in the format of enclosure 6. DIA shall transmit the text of the
agreement to the Assistant Legal Adviser for Treaty Affairs in accordance
with subsection G.2. above. NSA shall transmit the text of each
international intelligence agreement to the Assistant Legal Adviser for
Treaty Affairs in accordance with subsection G.2., above.
4. The Secretary of State determines for and within the Executive Branch
whether an international agreement, as defined in this Directive, is
required by the Case Act to be transmitted to the Congress under the
criteria set forth in enclosure 3. If decided affirmatively, the
Department of State makes the transmittals required. When a question
arises as to whether any document or set of documents constitutes an
international agreement within the meaning of the Case Act, that question
shall be referred for decision through and by the GC, DoD to the Assistant
Legal Adviser for Treaty Affairs, DoS, within 20 days after the agreement
enters into force.
H. REQUIREMENTS FOR, AND RESTRICTIONS ON, AUTHORITY TO NEGOTIATE OR
CONCLUDE AN INTERNATIONAL AGREEMENT OR TO MAKE UNILATERAL COMMITMENTS TO A
FOREIGN GOVERNMENT OR INTERNATIONAL ORGANIZATION
1. This Directive is procedural only. It does not constitute substantive
legal authority to negotiate or conclude any international agreement.
Substantive legal authority for obligations proposed to be assumed by the
United States in an agreement may be found only in the law applicable to
the subject matter involved in the agreement.
2. DoD personnel shall neither initiate nor conduct the negotiation of an
international agreement, nor request another U.S. Government organization
to negotiate an international agreement, without prior written approval by
the DoD officer who is assigned approval responsibility under section M.,
below, of this Directive, or by the designee or delegate of that officer.
a. Accreditation of DoD personnel to U.S. delegations to international
conferences shall be made as stated in enclosure 5.
b. If a representative of a foreign government or international
organization seeks to initiate the negotiation of an international
agreement for which negotiation authority has not been granted under this
Directive, the DoD officer or employee to whom such proposal is made, if
someone other than an official who is authorized under this Directive to
grant approval to negotiate, promptly shall report that fact, through
appropriate channels, to the Head of the DoD Component concerned and await
authorization before taking part in negotiations.
c. DoD personnel authorized to conduct or take part in the negotiation of
an international agreement shall be responsible for ensuring that during
the negotiation:
(1) No position is communicated to a foreign government or to an
international organization as a U.S. Government position that deviates
from existing authorization or instructions; and
(2) No proposal is agreed to beyond the existing authorization without
clearance from the original approving office.
d. GC, DoD shall act as lead counsel for the Department in all
international negotiations conducted by OSD components. This
responsibility may be delegated to a DoD Component's Office of General
Counsel or Staff Judge Advocate on a case-by-case basis.
e. The authority to negotiate and conclude proposed substantive amendments
to an international agreement must be approved according to the procedures
outlined in section I., below. Substantive amendments include those
provisions which, by themselves, might form the basis of a separate
agreement or that propose a new or altered obligation not previously
contemplated by the parties. The negotiation and conclusion of all
amendments, whether substantive or not, must be approved by the same DoD
official who approved the original agreement unless such official
expressly has delegated authority to approve amendments to the agreement
to another DoD official.
3. DoD personnel shall not conclude an international agreement without the
prior written approval of the DoD official who is assigned approval
responsibility by section M., below, of this Directive, or by the designee
or delegate of that official.
4. Notwithstanding delegations of authority made in section M., below, of
this Directive, all proposed international agreements having policy
significance shall be approved by the OUSD(P) before any negotiation
thereof, and again before they are concluded.
a. Agreements "having policy significance" include those agreements that:
(1) Specify national disclosure, technology-sharing or work-sharing
arrangements, coproduction of military equipment or offset commitments as
part of an agreement for international cooperation in the research,
development, test, evaluation, or production of defense articles,
services, or technology.
(2) Because of their intrinsic importance or sensitivity, would directly
and significantly affect foreign or defense relations between the United
States and another government.
(3) By their nature, would require approval, negotiation or signature at
the OSD or the diplomatic level.
(4) Would create security commitments currently not assumed by the United
States in existing mutual security or other defense agreements and
arrangements, or which would increase U.S. obligations with respect to the
defense of a foreign government or area.
This list in subparagraphs H.4.2.a.(1) through H.4.2.a.(4), above, is not
inclusive of all types of agreements having policy significance. Other
identifying criteria or categories of such agreements may be published by
USD(P) if required by future developments.
5. Notwithstanding the delegations of authority contained in section N.,
below; of this Directive, no international agreement which relies on the
authority of 10 U.S.C. 2304(c) (4) (reference (f)) for use of other than
competitive contracting procedures, shall be negotiated or entered into
without the prior approval of the USD(A).
6. Notwithstanding the delegations of authority contained in section M.,
below, of this Directive, no international agreement shall be negotiated
or entered into without the concurrence of the Assistant Secretary of
Defense (Comptroller) (ASD(C)).
7. Notwithstanding the delegations of authority contained in section N.,
below, of this Directive, no international agreement whose implementation
requires the enactment of new legislative authority shall be concluded
without the prior approval of the GC, DoD.
8. The authority to conclude an international agreement may be requested
and granted simultaneously with the authority to negotiate that agreement,
or authority to conclude may be withheld initially and granted later. The
grant of either authority may be made subject to such conditions
considered necessary or desirable by the officer exercising approval
authority, including prescribing which DoD personnel shall participate in
the negotiation and designating the chief negotiator.
9. Implementing agreements, annexes, project arrangements, and other
subsidiary arrangements that implement an umbrella or other master
agreement shall be reviewed by the GC, DoD, unless the responsible DoD
Component has been delegated in writing the authority to negotiate and
conclude such implementing arrangement. In these latter cases, legal
review by the responsible DoD Component shall include a determination
whether the proposed subsidiary arrangement is within the scope of the
umbrella or master agreement.
10. With the exception of subparagraph H.2.c.(1), above, the restrictions
and requirements of this section do not apply to DoD personnel and
employees assigned or detailed to U.S. delegations or diplomatic missions,
whether as individuals or as members of a military mission, group, or
other organization, in those situations where the chief of the U.S.
delegation or diplomatic mission directly requests authorization to
negotiate from the Secretary of State under State Department Circular 175
Procedure (reference (g)). In such situations, DoD personnel shall comply
fully with applicable instructions, including directives of the chief of
mission.
11. No international agreement shall be concluded by any DoD personnel in
a foreign language text, unless one of the following criteria is met:
a. The agreement expressly provides that the English language text shall
be considered by the parties as the governing text in case of conflict
between the different language texts.
b. The agreement expressly provides that the English language text and the
foreign language text are equally authentic, and each foreign language
text of the agreement is made the subject of a certification, executed
before the agreement is concluded in any language, stating that the
foreign language text and the English language text are in conformity with
each other and that both texts have the same meaning in all substantive
respects. The certification shall be dated and signed by a civilian,
military, or local national translator who has been designated as
qualified, consistent with local practices, by the DoD official authorized
to negotiate and conclude the agreement or by an appropriate DoS official.
The certification shall be sent with the agreement to the cognizant
central repository identified in section E., above, and, in accordance
with the procedures in section G., above, to the DoS.
12. All international agreements concluded by DoD personnel shall include
the date and place of signature(s) and the typed name and title of each
signatory. All amendments to international agreements concluded by DoD
personnel shall include, in addition to the above information, the title
and date of conclusion of the agreement that is being amended.
13. USD(P) and all other officials of DoD Components to whom the
responsibility to negotiate or conclude international agreements has been
delegated shall obtain the concurrence of their DoD Component's Office of
General Counsel or Staff Judge Advocate before tendering any draft of such
agreement to a prospective party thereto and before initialing or
concluding any international agreement. That concurrence shall include a
certification that the requirements of the Case Act and this Directive,
including the review of agreements having policy significance as specified
in subsection H.4., above, have been met.
14. DoD Components shall not make any unilateral commitments to any
foreign governments or international organizations, whether in the form of
letters, memoranda, or statements at meetings or conferences, before
obtaining the concurrence of their DoD Component's Office of General
Counsel or Staff Judge Advocate.
I. STANDARD PROCEDURES FOR REQUESTING AUTHORITY TO NEGOTIATE OR CONCLUDE
AN INTERNATIONAL AGREEMENT
1. The standard procedures in this section shall be used by USD(P) and by
all officials of OSD to whom responsibility for granting or denying
requests for authority to negotiate or conclude international agreements
has been delegated by the USD(P), when considering a request for authority
to negotiate or conclude an international agreement. The Heads of other
DoD Components to whom such responsibility has been delegated are
authorized to prescribe the use of summary procedures in lieu of these
procedures for those categories of international agreements that do not
have policy significance and for which they have responsibility for
granting or denying requests for such authority to negotiate or conclude.
2. A request to USD(P), or the delegee of that official within OSD, for
authority to negotiate an international agreement shall be made by the
Head of the DoD Component that has the primary interest in negotiating and
concluding the agreement. The request may include:
a. A request for the designation of a chief negotiator, who also may be
empowered to conclude the agreement.
b. A request for assistance in the negotiation from other elements of the
Department of Defense.
c. A request that the agreement be negotiated and concluded by OSD or by a
U.S. Government Department or Agency other than the Department of Defense.
3. The following shall be attached to the request:
a. A draft text or outline of the proposed international agreement or an
explanation for the unavailability thereof.
b. A legal memorandum reciting the Constitutional, statutory, or other
legal authority available to carry out each obligation proposed to be
assumed by the United States in the agreement, and an explanation of other
relevant legal considerations.
c. A fiscal memorandum that specifies the estimated cost of each
obligation proposed to be assumed by the Department of Defense in the
agreement, and the source of funds to be obligated, or a statement that
additional funds for the purpose shall be requested for a specified fiscal
year or years.
d. A Technology Assessment/Control Plan in the format described in
Enclosure 7, which:
(1) Itemizes all sensitive U.S. classified and unclassified articles,
commodities or technical data (see DoD Directive 5230.25 (reference (i))
which would be transferred via the proposed international agreement (which
for classified articles, commodities, or technical data should be
satisfied by submission of DD-254 or classification guide).
(2) Assesses the risk to U.S. national security through such transfers.
(3) Identifies the foreign technologies or other benefits that the United
States is likely to acquire as a result of the proposed agreement.
4. The request shall be supplemented by any other data that USI)(P), or as
the case may be, the official to whom appropriate authority has been
delegated, considers necessary to reach a decision.
5. The official in OSD exercising the authority to approve requests for
authority to negotiate or to conclude an international agreement shall
obtain concurrence from the GC, DoD, and, except with respect to Security
Assistance, the ASD(C), before granting any such request.
6. Paragraphs I.3.b. through I.3.d. above, and subsection 1.5., above, of
this section do not apply to standard form project annexes that are
negotiated under the authority of any master agreement prescribing the
format of project annexes, provided that the requirements of paragraph
H.13., above, have been complied with.
J. CENTRAL OFFICES OF RECORD
1. The USD(P) shall designate a single office of record for OSD that
shall:
a. Receive requests submitted under section I., above.
b. Record actions taken including coordination with the Department of
State and the staff of the NSC.
c. Receive and record proposals submitted for redelegations of authority
under section L., below, of this Directive.
d. Ensure that a complete negotiating history file is compiled, retained,
and maintained in retrievable form within the office of record for each
international agreement for which that office bears primary negotiating
responsibility within the Department of Defense; this requirement shall
apply even if the chief U.S. negotiator or the signer of the agreement is
an official of another DoD organization.
e. Forward two reproducible copies of each agreement to the GC, DoD
(Washington, D.C. 20301-1600), in accordance with subsection E.l., above.
2. Each DoD Component other than OSD that negotiates international
agreements shall promulgate Regulations to implement this Directive, and,
in its Regulations, designate a single office of record that shall:
a. Receive requests originating within that DoD Component for
authorization under section I., above, to negotiate or conclude an
international agreement.
b. Record coordination actions taken on a request originating from another
DoD Component.
c. Record authorizations to negotiate or conclude an international
agreement granted to a DoD Component by USD(P) or by an official to whom
approval authority is redelegated under section M., below (and denials of
such authorizations).
d. Ensure that a complete negotiating history file is compiled, retained,
and maintained in retrievable form within the DoD Component for each
international agreement for which the DoD Component bears primary
negotiating responsibility within the Department of Defense; this
requirement shall apply, even if the chief U.S. negotiator or the signer
of the agreement is an official -of-another, DoD organization.
e. Monitor compliance, within that organizational element, with the
provisions of this Directive.
f. Maintain an index of all such agreements. A copy of the index, updated
to include all agreements of the previous calendar year, shall be sent to
the GC, DoD, by January 31 of each year.
g. Forward two reproducible copies of each international agreement to the
GC, DoD (Washington, D.C. 20301-1600), in accordance with subsection E.l.,
above.
3. The Under Secretary of Defense (Acquisition) (USD(A)), the Assistant
Secretaries of Defense (ASDs), and the Assistant to the Secretary of
Defense (Atomic Energy) (ATSI) (AE)) shall designate an office of record
within their organizations to discharge the functions specified in
paragraphs J.2.a. through J.2.g., above.
K. COMPLIANCE
It is DoD policy to maintain awareness of compliance with the terms of
international agreements. DoD Components shall oversee compliance with
international agreements for those agreements for which the DoD Component
is responsible. DoD Components shall keep GC, DoD, currently and
completely informed on compliance with all international agreements in
force for which they are responsible. When a question arises concerning
compliance by any party or parties with the terms of an international
agreement that cannot be resolved by informal discussions between the
responsible offices, except for those cases governed by the procedures set
forth in DoD Directive 5525.1 (reference (j)), the Head of the DoD
Component concerned shall be provided with full particulars of the
circumstances relevant to such question. Unless previously authorized by
the Secretary of Defense, no action shall be taken by any DoD Component to
resolve or otherwise deal with any such questions having policy
significance (see subsection H.4., above) before obtaining the written
concurrence of both USD(P) and GC, DoD.
L. ASSIGNMENT OF RESPONSIBILITY FOR AUTHORIZING NEGOTIATION AND CONCLUSION
OF INTERNATIONAL AGREEMENTS
1. The responsibility, for authorizing the negotiation and conclusion of
international agreements is assigned to USD(P) for all categories of
international agreements, unless this Directive or other authorizing
regulation for a specific category of agreements specifies another
official within the Department of Defense.
2. The USD(P) may delegate authority to Heads of DoD Components to approve
negotiation and conclusion of categories of international agreements, with
authority to redelegate, and may rescind or change any delegations made by
them. Section M., below, of this Directive contains such delegations of
authority. All further delegations shall be in writing and a copy of such
delegation filed with the GC, DoD.
3. To the maximum extent possible, and while considering security
implications, delegations of authority by the USD(P) shall be granted for
classes or types of agreements, rather than on a case-by-case basis.
Requests for authority to negotiate and conclude agreements having policy
significance shall be forwarded directly to USD(P) in accordance with
subsection H.4. and section I., above, of this Directive. In case of
doubt, the decision as to whether or not a proposed agreement falls under
subsection H.4., above, shall be made by USD(P).
4. With respect to such agreements, USD(P) shall:
a. Arrange for DoD participation in the negotiations, including
representation, advice, or assistance by other DoD Components when
appropriate.
b. Monitor the implementation of agreements in force, and provide
appropriate guidance, advice, and assistance to other DoD Components in
the exercise of their responsibilities under such agreements.
5. If the proposed agreement is to be negotiated and signed at the
diplomatic level, requests forwarded to USD(P) pursuant to section I.,
above, shall be accompanied by draft negotiating instructions to be
transmitted by the DoS to the U.S. diplomatic mission concerned.
6. The approval authority delegated in section M., below, may be
redelegated. However, the DoD Component to which approval authority is
initially delegated by section M., below, is responsible for complying
with this Directive.
M. DELEGATIONS OF AUTHORITY
Authority to negotiate and conclude international agreements is hereby
delegated, within the categories shown, to the following designated
organizational elements of the Department of Defense:
1. Technical, operational, working, or similar agreements or arrangements,
concluded pursuant to a treaty or executive agreement that entails
implementing arrangements:
a. The Secretaries of the Army, Navy, and Air Force (for predominantly
uni-Service matters) .
b. The Chairman, Joint Chiefs of Staff (CJCS) (for agreements concerning
operational command of joint forces).
c. The Director, Defense Security Assistance Agency (DSAA), (for
agreements pertaining to the security assistance program).
2. Agreements for cooperative or reciprocal operational, logistical,
training, or other military support, including arrangements for shared use
or licensing of military equipment, facilities, services and nonphysical
resources.
a. The Secretaries of the Army Navy, and Air Force (for predominantly
uni-Service matters).
b. The CJCS (for agreements concerning operational command of joint
forces).
c. The USD(A) (for agreements concerning cooperative or reciprocal
logistical support, including shared use of equipment, facilities, and
services, except for uni-Service matters).
d. The Director, DSAA (for agreements pertaining to the security
assistance program).
3. Agreements relating to combined military planning, command
relationships, military exercises and operations, minor and `emergency
force deployments, and exchange programs, including those effected
pursuant to 10 U.S.C. 2114(a) (reference (f)):
a. The Secretaries of the Army, Navy, and Air Force (for predominantly
anno-Service matters).
b. The CJCS (for other than anno-Service matters).
4. Agreements for the collection and exchange of military intelligence
information (except signals intelligence agreements): The Director, DIA.
The Assistant Secretary of Defense (Communications, Command, Control, and
Intelligence) (ASD(C3I)) shall concur in all proposed agreements
concerning intelligence and intelligence-related matters.
5. Agreements for the collection or exchange of military information and
data other than military intelligence:
a. The Secretaries of the Army, Navy, and Air Force (for predominantly
anno-Service matters);
b. The CJCS (for agreements concerning operational command of joint
forces).
c. The Director, DMA, with ASD(C3I) concurrence (for agreements relating
to mapping, charting, and geodesy.)
6. Cooperative research, development, test, evaluation, technical data
exchange, and related standardization agreements that are not implemented
through the Security Assistance program:
a. The Secretaries of the Army, Navy, and Air Force (for health and
medical agreements)
b. The USD(A).
7. Coproduction, licensed production, and related standardization
agreements that are not implemented through the Security Assistance
Program: The USD(A).
8. Agreements relating to the sharing or exchange of DoD communications
equipment, facilities', support, services, or other communications
resources with a foreign country or' alliance organization such as the
North Atlantic Treaty Organization (NATO) (including agreements pursuant
to 10 U.S.C. 2401a) (reference (f)), the use of U.S. military frequencies
or frequency bands, and the use of U.S. communications facilities and/or
systems by foreign organizations, whether overseas or in the continental
United States:
a. The ASD(C3I).
b. The CJCS (for agreements concerning operational command of joint
forces).
c. The Secretaries of the Army, Navy, and Air Force (for predominantly
anno-Service matters).
9. Military and industrial security agreements under the provisions of
paragraph E.l.d. of DoD Directive 5230.11 (reference (k)): The DUSD(P).
10. Agreements relating to on-base financial institutions (e.g. military
banking facilities and credit unions) and international financial
agreements requiring Treasury Department coordination under DoD
Instruction 7360.9 (reference (l)): The ASD(C).
11. Agreements relating to communications security technology, services,
support, research, or equipment development and production: The Director,
NSA.
12. Military-related signals intelligence agreements: The Director, NSA.
The ASD(C3I) shall concur in all proposed agreements.
N. EFFECTIVE DATE AND IMPLEMENTATION
This Directive is effective immediately. Forward two copies of
implementing documents to the General Counsel, Department of Defense, and
to the Under Secretary of Defense for Policy within 120 days.
William H. Taft, IV Deputy Secretary of Defense
Enclosures - 7 1. References 2. Definitions 3. Title 22, Code of Federal
Regulations, Part 181 4. Title 1, United States Code,
Section 112b 5. Multiaddressee Memorandum of former DoD Secretary Melvin
R. Laird, subject: "Attendance by DoD Personnel at International
Conferences, Organizations, Meetings, and Negotiations," January 3, 1972
6. Sample Format of Background Statement for Submission of International
Agreements to the DoD Assistant General Counsel (International Affairs)
and to the Department of State. 7. Technology Assessment/Control Plan
REFERENCES, continued
(d) DoD Directive 2010.6, "Standardization and Interoperability of
Weapons Systems and Equipment Within the North Atlantic Treaty
Organization," March 5, 1980
(e) DoD Directive 5105.38, "Defense Security Assistance Agency (DSAA),"
August 10, 1978
(f) Title 10, United States Code, Sections 2114(a) and 2114(e), 2304(c)
(4), 2321 et. seq., 2401a, 2667, and 2675.
(g) State Department Circular 175 Procedure, Foreign Affairs Manual,
Volume 11, Chapter 700
(h) DoD Directive 5230.25, "Withholding of Unclassified Technical Data
from Public Disclosure," November 6, 1984
(i) DoD Directive 5525.1, "Status of Forces Policies and Information,"
August 7, 1979
(j) DoD Directive 5230.11, "Disclosure of Classified Military Information
to Foreign Governments and International Organizations," December 31, 1984
(k) DoD Instruction 7360.9, "Procedures for Use of Foreign Currencies,
September 8, 1981
(l) Title 22, United States Code, Section 2796
(m) DoD Directive 2010.9, "Mutual Logistics Support Between the United
States and Governments of Other NATO Countries and NATO Subsidiary
Bodies," June 7, 1984
DEFINITIONS
1. International Agreement
a. Any agreement concluded with one or more foreign governments (including
their agencies, instrumentalities, or political subdivisions) or with an
international organization, that:
(1) Is signed or agreed to by personnel of any DoD Component, or by
representatives of the DoS or any other Department or Agency of the U.S.
Government;
(2) Signifies the intention of its parties to be bound in international
law.
(3) Is denominated as an international agreement or as a memorandum of
understanding, memorandum of agreement, memorandum of arrangements,
exchange of notes, exchange of letters, technical arrangement, protocol,
note verbal, aide memoire, agreed minute, contract, arrangement, statement
of intent, letter of intent, statement of understanding or any other name
connoting a similar legal consequence.
b. Any oral agreement that meets the criteria of paragraph I.a., above, is
an international agreement. The DoD representative who enters into the
agreement shall cause such agreement to be reduced to writing. In written
form, the agreement is subject to the requirements of sections E. and G.,
above.
c. The following are not considered to constitute international agreements
for the purposes of this Directive:
(1) Contracts made under the Federal Acquisition Regulations (FAR).
(2) Foreign Military Sales Credit Agreements.
(3) Foreign Military Sales Letters of Offer and Acceptance and Letters of
Intent executed on DD Form 1513, "DoD Letter of Offer and Acceptance" and
DD Form 2012, "U.S. Department of Defense Letter of Intent."
(4) Standardization Agreements (STANAGs, QSTAGs, ASCC Air Standards, and
NAVSTAGs) that record the adoption of like or similar military equipment,
ammunition, supplies, and stores or operational, logistic, and
administrative procedures (however, a STANAG that provides for mutual
support or cross-servicing of military equipment, ammunition, supplies,
and stores or for mutual rendering of defense services, including
training, is considered to constitute an international agreement).
(5) Leases under 10 U.S.C. 2667, 2675 (reference (f)), and 22 U.S.C. 2796
(reference (m)).
(6) Agreements solely to establish administrative procedures.
(7) Acquisitions or orders pursuant to cross-servicing agreements made
under the authority of the NATO Mutual Support Act (10 U.S.C. 2321 et seq.
(reference (f)) and DoD Directive 2010.9 (reference (n). (Umbrella
agreements, implementing arrangements, and cross-servicing agreements
under the NATO Mutual Support Act are international agreements.)
2. Negotiation. Communication by any means of a position or an offer, on
behalf of the United States, the Department of Defense, or on behalf of
any officer or organizational element thereof, to an agent or
representative of a foreign government, including an agency,
instrumentality, or political subdivision thereof, or of an international
organization, in such detail that the acceptance in substance of such
position or offer would result in an international agreement. The term
"negotiation" includes any such communication even though conditioned on
later approval by the responsible authority. The term "negotiation" also
includes provision of a draft agreement or other document, the acceptance
of which would constitute an agreement, as well as discussions concerning
any U.S. or foreign government or international organization draft
document whether or not titled "agreement." The term negotiation" does not
include preliminary or exploratory discussions or routine meetings where
no draft documents are discussed, so long as such discussions or meetings
are conducted with the understanding that the views communicated do not
and shall not bind or commit any side, legally or otherwise.
3. Conclusion. The act of signing, initialing, responding, or otherwise
indicating the acceptance of an international agreement by the United
States.
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TITLE 1, UNITED STATES CODE, SECTION 112b
Sec. 112b. United States international agreements; transmissions to
Congress
(a) The Secretary of State shall transmit to the Congress the text of any
international agreement (including the text of any oral international
agreements which agreement shall be reduced to writing). other than a
treaty, to which the United states is a party as soon as practicable after
such agreement has entered into force with respect to the United States
but in no event later than sixty days thereafter. However, any such
agreement the immediate public disclosure of which would, in the opinion
of the President, be prejudicial to the national security of the United
States-shall not be so transmitted-to the Congress but shall be
transmitted to the Committee on Foreign Relations of the Senate and the
Committee on International Relations of the House of Representatives under
an appropriate injunction of secrecy to be removed only upon due notice
form the President. Any department or agency of the United States
Government which enters into any international agreement on behalf of the
United Sates shall transmit to the Department of State the text of such
agreement not later than twenty days after such agreement has been signed.
(b) Not later than March 1, 1979. and at yearly intervals thereafter, the
President shall, under his own signature. transmit to the Speaker of the
House of Representatives and the chairman of the Committee on Foreign
Relations of the Senate a report with respect to each international
agreement which. during the preceding year, was transmitted to the
Congress after the expiration of the 60-day period referred to in the
first sentence of subsection (a). describing fully and completely the
reasons for the late transmittal.
(c) Notwithstanding any other provision of law, an international
agreement may not be signed or otherwise concluded on behalf of the United
States without prior consultation with the Secretary of State. Such
consultation may encompass a class of agreements rather than a particular
agreement.
(d) The Secretary of State shall determine for and within the executive
branch whether an arrangement constitutes an international agreement
within the meaning of this section.
(e) The President shall, through the Secretary of State, promulgate such
rules and regulations as may be necessary to carry out this section.
(Added Pub. L. 92-403. Sec. 1, Aug. 22, 1972, 86 Stat. 619, and amended
Pub. L. 95-45. Sec. 5, June 15, 1977. 91 Stat. 224, Pub. L. 95-426, Title
VII, S 708, Oct. 7. 1978, 92 Stat. 993.)
MULTIADDRESSEE MEMORANDUM OF FORMER DoD SECRETARY MELVIN R. LAIRD,
SUBJECT: "ATTENDANCE BY DoD PERSONNEL AT INTERNATIONAL CONFERENCE.,
ORGANIZATIONS, MEETINGS, AND NEGOTIATIONS," JANUARY 8, 1972
THE SECRETARY OF DEFENSE WASHINGTON. D.C. 20301
JAN 8, 1972
MEMORANDUM FOR THE SECRETARIES OF THE MILITARY DEPARTMENTS CHAIRMAN, JOINT
CHIEFS OF STAFF DIRECTOR OF DEFENSE RESEARCH AND ENGINEERING ASSISTANT
SECRETARIES OF DEFENSE GENERAL COUNSEL ASSISTANTS TO THE SECRETARY OF
DEFENSE DIRECTORS OF THE DEFENSE AGENCIES DIRECTOR OF OCEAN AFFAIRS
SUBJECT: Attendance by DOD Personnel at International Conferences,
Organizations, Meetings, and Negotiations
It has recently been brought to my attention that unaccredited DOD
officials have, from time to time, appeared at international conferences
to join the official US delegation.
In order to preclude a recurrence of such incidents, the Assistant
Secretary of Defense (International Security Affairs) wig be responsible
for informing the Department of State, in all cases, of the names of those
who will represent the Department of Defense in international
organizations and at international conferences or negotiations
Addressees of this memorandum are requested to `provide appropriate
information concerning attendees at meetings within areas in which they
have an interest to the Assistant Secretary of Defense (International
Security Affairs) in order that the Department of State may be informed.
Except where circumstances make it impractical, the information should be
submitted two weeks in advance of the prospective attendance.
SAMPLE FORMAT OF BACKGROUND STATEMENT FOR SUBMISSION OF INTERNATIONAL
AGREEMENTS TO THE DoD ASSISTANT GENERAL COUNSEL (INTERNATIONAL AFFAIRS)
AND TO THE DEPARTMENT OF STATE
I. TYPE of agreement:
bilateral _____ multilateral _____
11. Specify the COUNTRY (COUNTRIES) or INTERNATIONAL ORGANIZATION(S) that
is/are party (parties). Do not list the United States.
III. List all U.S. and FOREIGN GOVERNMENTAL AGENCIES or UNITS or
INTERNATIONAL ORGANIZATIONS identified as responsible for carrying out the
agreement.
IV. Specify the FULL TITLE of the agreement.
Specify the SUBJECT MATTER of the agreement.
VI. Provide a statement of the LEGAL AUTHORITY that authorizes the
Department of Defense to enter into and carry out the agreement.
VII. State the Date of ENTRY INTO FORCE.
VIII. State the Date of TERMINATION
IX. PRINT the NAMES of all SIGNING OFFICIALS, their TITLE and/or the
OFFICES they represent, and their COUNTRIES or INTERNATIONAL ORGANIZATION.
X. State the FULL TITLE(S) and DATE(S) of AGREEMENT(S), if any, upon which
this agreement is based or amends.
XI. State the DATE OF SIGNATURE of this agreement.
TECHNOLOGY ASSESSMENT/CONTROL PLAN (TA/CP) INTERNATIONAL AGREEMENTS
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TECHNOLOGY ASSESSMENT/CONTROL PLAN (TA/CP)
Delegation of Disclosure Authority Letter (DDL)
A DDL is required as part of the request for authority to conclude (RAC)
an international agreement. The following format should be used for this
purpose by cognizant DOD Components. The content of the DDL must conform
to the content of paragraphs 3 and 4 of the TA/CP.
While all elements identified should he provided in the general order
shown, information should he presented in the clearest and easiest-to-use
manner. (For example, for complex systems the usefulness of the DDL may be
enhanced if items 5 and 6 are broken out by major subsystem.)
TITLE: DATE:
1. CLASSIFICATION: Identify highest classification of information to be
disclosed.
2. DISCLOSURE METHODS: E.g., oral, visual, or documentary.
3. CATEGORIES PERMITTED: Specify NDP categories to be disclosed/released.
4. SCOPE: Specify who is authorized to release material or information,
and to whom disclosure is authorized.
5. AUTHORIZED FOR RELEASE/DISCLOSURE: Describe material/information that
can be released or disclosed.
6. NOT AUTHORIZED FOR RELEASE/DISCLOSURE: Describe material/information
that cannot be released or disclosed.
NOTE: In addition to providing specific descriptions of releasable and
restricted material and information, items 5 and 6 will also specify any
conditions or limitations to be imposed (e.g., time-phasing of release,
allowable forms for software, identification of items releasable only as
finished, tested assemblies, etc.).
7. PROCEDURES: Specify review and release procedures, special security
procedures or protective measures to be imposed.
8. REDELEGATION: Specify the extent of redelegation of authority (if any)
permitted to subordinate activities.
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Defense Department Space Policy