Chapter 13

International Agreements

I.    Introduction

A.   The Judge Advocate (JA) may face numerous and varied international agreements throughout the spectrum of military operations, especially in the context of exercises, deployments, or stations overseas.  The JA should be prepared to perform the following tasks related to international agreements: determining the existence of an agreement, assisting in drafting a request for authority to negotiate and conclude an agreement, assisting in the negotiation and conclusion of an agreement, and implementing or ensuring compliance with an agreement.  There are too many international agreements, many of which are classified, to discuss specific agreements in this chapter.  Instead, this chapter focuses on the JA’s role when dealing with international agreements.

B.    The United States divides international agreements into two general categories (1) Treaties and (2) International Agreements Other Than Treaties.^[1]  Treaties are international agreements whose entry into force for the United States takes place only after two-thirds of Senate gives advice and consent and the President submits the required ratification documents required by the treaty instrument.  International Agreements Other Than Treaties include agreements that may enter into force upon signature and do not require the advice and consent of the Senate.^[2]  The executive branch has the constitutional authority to negotiate and conclude an international agreement under one of three bases: (1) an existing treaty authorizes the agreement; (2) legislation authorizes the agreement; or (3) the agreement falls under the President’s constitutional authority (sole executive agreements).^[3]

II.  Determining the Existence of an INTERNATIONAL Agreement

A.   Determining the existence of an international agreement is more challenging than one might think.  A JA must search multiple databases and conduct extensive research to determine (1) whether an agreement exists and (2) how to locate the actual text of the agreement.

B.    The U.S. Department of State (DoS) is the domestic repository for all international agreements to which the United States is a party.^[4]  Federal law (1 U.S.C. § 112a) requires DoS to publish annually a document entitled “Treaties in Force” (TIF), a list of all treaties and other international agreements in force as of 1 January of that year.^[5]  Note, however, that the TIF is merely a list of treaties and other international agreements.  It does not include the full text of each agreement listed in it.  Practitioners must locate the full text of an agreement listed in TIF using the citation(s) found within the TIF entry for each agreement.^[6]  The TIF may include citations to the United States Treaties and Other International Agreements (UST),^[7] the Treaties and Other International Agreements (TIAS) series,^[8] or the United Nations Treaty Series (UNTS).^[9]  Many agreements in the TIF have no citations.  A lack of a citation indicates that the agreement is not yet published in one of the treaty series or it may have an “NP” (Not Printed) cite which indicates that DoS determined it will not publish the particular agreement.  Also keep in mind the TIF and the TIAS are unclassified series and do not contain classified agreements.  While the TIF and the TIAS are good places to start when looking for an international agreement, they may not offer a complete solution.

C.    Within DoS, the Country Desk responsible for the country to which a military unit is set to deploy may be able to help.^[10]  Another resource is the Military Group for the country at issue.  Either the Country Desk or the Military Group should have the most current information about any agreements with their country.

D.   Within the Department of Defense (DoD), JAs have other options.  First, through the appropriate chain of command (i.e., military service component command), consult the legal office for the combatant command (COCOM) with responsibility for the country at issue.  Combatant commands are responsible for maintaining a list^[11] of international agreements with countries within their area of responsibility.  Other options include the division of each service’s headquarters legal office responsible for international law.  For example, the Army Office of the Judge Advocate General, National Security Law Division has an online document library that contains many unclassified international agreements.  You may also find international agreements elsewhere on the internet, such as on the United Nations (UN) or North Atlantic Treaty Organization (NATO) websites.^[12]

III.  AUTHORITIES

A.   General.  An international agreement binds the United States under international law.  The Constitution vests the power to make treaties with the President, “by and with the Advice and Consent of the Senate.”^[13]  Therefore, any authority DoD has to negotiate or conclude international agreements is delegated from the President’s executive power or provided by legislation from Congress.  Judge advocates should look for a specific grant of authority authorizing DoD to enter into an international agreement.

B.    Delegation of Authority.

1.    Most international agreements related to DoD interests flow from authority possessed by the Secretary of Defense (SECDEF) through executive branch delegation or direct Congressional authorization.  For example, Congress authorizes the President to “provide training and related support to military and civilian defense personnel of a friendly foreign country or an international organization,” and such support may require an international agreement.^[14]  In Executive Order 13637, the President delegated agreement authority under 22 U.S.C. § 2770a to the SECDEF.^[15]  Acquisition and Cross-Servicing Agreements (ACSAs) pursuant to 10 U.S.C. § 2342 authorize SECDEF to enter into certain agreements with specified countries for logistics support, supplies, and services.

2.    The SECDEF delegated authority to enter into international agreements to the Under Secretary of Defense for Policy (USD(P)) and the Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)), and delegated some authorities further.^[16]  Matters that are predominately the concern of a DoD Component are delegated to the applicable DoD Component head in coordination with the relevant Combatant Commander, as appropriate.^[17]  SECDEF delegated agreements concerning the operational command of joint forces to the relevant Combatant Commander through the Chairman, Joint Chiefs of Staff (CJCS).^[18]  Additional special authorities are delegated to various defense agencies.^[19]  And the Service Secretaries published regulations or instructions that delegate some portion of the Secretaries’ authority.^[20]

3.    The USD(P) or the USD(A&S), as applicable, or their respective designees, retain the authority to negotiate agreements with policy significance. They may approve the authority for a DoD Component head to negotiate or conclude each proposed international agreement under his or her cognizance that has policy significance. The term “policy significance” is interpreted broadly.  A non-inclusive list from DoDI 5530.03 of examples of agreements with policy significance is reproduced here: [21]

a.    International agreements that have policy significance include, but are not limited to, international agreements that:

       (1)  Could significantly affect:

                      (a)  Foreign or defense relations between the United States and another government, including, but not limited to, agreements relating to the status of U.S. Armed Forces and DoD civilian employee personnel in foreign countries, e.g., exemptions from host nation laws. 

                      (b)  Access to foreign territory.

                      (c)  Access to or use of foreign government-owned land or structures on a reimbursable or non-reimbursable basis.

                      (d)  Construction or relinquishment of the right of use of land or structures on foreign government-owned facilities.

                      (e)  Bilateral defense or military-to-military associations between the United States and another country.

       (2)  Would create security commitments, assurances, or arrangements currently not assumed by the United States in existing treaties; would create mutual security or other defense agreements and arrangements; or would alter U.S. obligations with respect to the defense of a foreign government or area.

       (3)  Would raise unusual or uncommon legal issues or establish significant new legal precedents, as determined by the DoD Component GC or SJA, as applicable.

       (4)  By their nature would require approval, negotiation, or signature at the OSD or diplomatic level.

       (5)  Have foreign disclosure policy implications pursuant to DoDD 5230.11 and DoDD 5230.20, or involve communications interoperability or security.

       (6)  Involve cooperative production of military equipment or cooperation in the research, development, test, evaluation, or production of defense articles, services, or technology.

       (7)  Concern cooperative or reciprocal logistic support, including shared use of equipment, facilities, and services.

       (8)  Have cost-sharing provisions.

4.    In general, delegations are to be construed narrowly.  JAs should refer questions about whether an authority has been delegated through their technical (legal) chain to the higher authority for resolution. 

C.    Seeking Authority:  Circular 175 Procedure Requirements.^[22]

1.    “D[o]S authorization is required in the case of any international agreement that is binding under international law.”^[23]  Subject to DoS substantive authorization, DoD Component heads may be delegated authority to negotiate or conclude an international agreement.^[24]  Such delegations do not confer substantive legal authority.^[25]  And no authority may be redelegated without prior written consent of the delegated authority.^[26]  Regardless of such delegations, DoD Component heads must comply with all DoDI 5530.03 requirements and consult the DoD General Counsel (GC), via the technical chain, about any international agreement that may raise significant legal issues.^[27]

2.    There is a specific procedure for requesting authority to negotiate or conclude an international agreement.  The DoD Component will send the request to the USD(P) or the USD(A&S) as appropriate.  The request must include a draft of the proposed agreement, a legal memorandum, a fiscal memorandum, and a policy memorandum.^[28]  The legal memorandum must trace the Constitutional, statutory, or other legal authority to execute each of the proposed obligations, identify the applicable Circular-175 authorization and any related existing agreements, address any new legal issues raised by the request, and explain other relevant legal considerations.^[29] 

D.   Coordination.  In addition to the approval requirements summarized above, Congress created coordinating and reporting requirements through the Case-Zablocki Act.^[30]  Section (c) of the Act provides:  “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.”^[31]  The Secretary of State published procedures to implement the Case-Zablocki Act in the Code of Federal Regulations^[32] and the Foreign Affairs Manual.^[33]   Coordination with DoS is generally not below the Secretariat or COCOM.  Questions regarding DoD legal authority or specific DoS authorization must be submitted through the DoD GC to the USD(P) or the USD(A&S).^[34] 

IV.  Negotiating and concluding International Agreements

A.   Although JAs may be involved in the negotiation and conclusion of an international agreement, it is likely that the DoS will lead the negotiation team.  Nonetheless, this information is important for the following reasons:

1.    The international agreement negotiations process is governed by very detailed rules that require significant interagency coordination. 

2.    It is essential for JAs to know what constitutes an international agreement and what constitutes the “negotiation” or “conclusion” of an international agreement to help commanders and staff avoid inadvertent action without the proper authority.

B.    The elements of an international agreement are:  (1) any agreement with one or more foreign governments (including their agencies, instrumentalities, or political subdivisions) or international organizations; (2) signed or agreed to by representatives of any Department or Agency within the U.S. Government; and (3) signifies the intention of the parties to be bound under international law.  Generally, if a document satisfies the requirements listed above, it is an international agreement.  Oral agreements are also international agreements; however, they must be subsequently reduced to writing.  Similarly, the actual status or position of the signer is not as important as the representation that the signer speaks for the government.^[35]

C.    The title or form of the agreement is of little consequence.  International agreements may take the form of a memorandum of understanding or memorandum of agreement, an exchange of letters, an exchange of diplomatic notes (“Dip Notes”), a technical arrangement, a protocol, a note verbale, an aide memoire, etc.  Forms that usually are not regarded as international agreements include contracts made under the Federal Acquisition Regulations (FAR), credit arrangements, standardization agreements (STANAG), leases, agreements solely to establish administrative procedures, and Foreign Military Sales (FMS) letters of offer and acceptance.  A memorandum that merely sets out standard operating procedures for de-conflicting radio frequencies is generally not an international agreement, while a “lease” that includes status provisions would likely rise to the level of an international agreement.  Form is not as important as substance.

D.   Negotiation.

1.    It is important for JAs and their commands to understand that the negotiation of an international agreement cannot begin without first completing the proper approval and coordination described above.  It is also important for JAs and their commands to understand what constitutes negotiation.  DoDI 5530.03 defines “negotiation” as:

Communication by any means of a position or an offer, on behalf of the United States, the DoD, or 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 includes any such communication, even though the agreement may be conditioned on later approval by the responsible authority.  The term also includes the presentation 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 does not include preliminary or exploratory discussions, consultations, or routine meetings where no proposed texts or draft documents are presented, so long as such discussions or meetings are conducted with the understanding that the views communicated do not and will not bind or commit any side, legally or otherwise.^[36]

2.    If the proposed agreement has been approved and coordinated, the authorized official may begin negotiating the agreement with foreign authorities.  At this point, the process is much like negotiating any contract.  The objectives of the parties, the relative strengths of their positions, and bargaining skills all play a part.  Once the parties finalize the negotiations, the DoD official may not sign or otherwise conclude the agreement unless they received the specific approval to do so.  The official can request the approval to conclude the agreement through the same procedures discussed above, unless the initial written approval included the authority to both negotiate and conclude the agreement.

E.    Reporting Requirements.   

1.    Once an international agreement is concluded, DoD must comply with procedural reporting requirements under the Case-Zablocki Act (as implemented in 22 C.F.R. Part 181).  The Case-Zablocki Act requires an agency to transmit the text of a concluded international agreement to the Office of the Assistant Legal Adviser for Treaty Affairs as soon as possible, but no later than twenty days after the agreement was signed.^[37]

2.    To comply with the Case-Zablocki Act, DoDI 5530.03 requires the DoD component responsible for the agreement to send the original or a certified copy to the Assistant Legal Adviser for Treaty Affairs and to the DoD General Counsel’s Office no later than 20 days after the agreement enters into force.  If the agreement is concluded using delegated authority, the delegating authority must also receive a copy of the agreement.^[38]  For example, if the agreement was negotiated and concluded using delegated authority from the Secretary of the Army, the organizational element is required to forward four copies to HQDA (DAJA-IO) within ten days of signing the agreement.^[39]  JAs should also consult applicable Combatant Commander regulations to ensure compliance with any additional reporting requirements.

V.  Implementing & Ensuring Compliance with an international Agreement

A.   The JA on a staff can expect to be the principal player when implementing or ensuring compliance with international agreements.  Some areas, such as foreign criminal jurisdiction (FCJ), will already fall within the JA’s practice area.  Others - such as logistics agreements - are handled by experts in other staff sections with JA support.  In areas in which the United States has been exercising an agreement for a long time, such as the NATO ACSA, the subject-matter experts will require little legal support.  Infrequently-used or newly-concluded agreements may require substantial JA involvement.

B.    Common subjects of international agreements include:  Status of Forces Agreements (SOFAs), logistics support, pre-positioning, cryptologic support, personnel exchange programs, and defense assistance programs (to include security assistance).  Deploying JAs will most frequently reference SOFAs, or other agreements establishing jurisdictional protections.  However, JAs will also find logistics support agreements, such as ACSAs, of critical importance.

1.    Status of Forces Agreements.

a.    Historical Background.  There is little international law governing the stationing of friendly forces in a host nation’s territory.  Most frequently, the countries applied the law of the flag.  Since friendly forces were transiting a territory with host nation permission, it was understood that the nation of the visiting forces retained jurisdiction over its service members.  After World War II, there was a large increase in the number of forces stationed in friendly countries.  Accordingly, countries had an increased need for more formal agreements to address the anticipated legal issues and clarify relationships between the countries and their forces.  Today SOFAs vary in format and length.  They range from complex multi-lateral agreements, such as the NATO SOFA and its accompanying country supplements, to very limited, smaller-scale Diplomatic Notes.  In addition to criminal jurisdiction, SOFAs also typically cover a large variety of topics.^[40]

b.    Status/Foreign Criminal Jurisdiction (FCJ).  One of the most important deployment issues is criminal jurisdiction.  The general rule of international law is that a sovereign nation has jurisdiction over all persons found within its borders.  There can be no derogation of that sovereign right without the consent of the receiving state (the host nation).  In the absence of an agreement, personnel of the sending state (the state sending forces into the host nation) are subject to the criminal jurisdiction of the receiving state.  It is DoD’s policy to maximize the exercise of U.S. jurisdiction over DoD personnel present in all areas outside the United States due to official duties to the extent permissible under applicable status of forces agreements or other forms of jurisdiction arrangements.^[41]

c.    Exception.  Combat deployments are an exception to the general rule that unless waived, the receiving state has jurisdiction over personnel within its territory.  U.S. forces are generally subject to exclusive U.S. jurisdiction during a combat deployment.  As the exigencies of combat subside, however, the primary right to exercise criminal jurisdiction may revert to the receiving state or fall under another jurisdictional structure pursuant to a negotiated agreement.

d.    Types of Criminal Jurisdiction Arrangements.  Beyond a complete waiver of jurisdiction by the receiving state, there are four possible types of arrangements: Administrative and Technical Status (A&T status); the NATO formula of Shared Jurisdiction; Visiting Forces Acts; and the prospect of deploying without any status protections.

(1)  Administrative and Technical Status (A&T Status).  Some receiving states may consent to granting U.S. personnel status protections equivalent to those given to the administrative and technical staff of the U.S. embassy, as defined in the Vienna Convention on Diplomatic Relations.  This is often referred to as “A&T status.”  In many cases, the United States can obtain such status by incorporating through reference the status protections already granted to U.S. military personnel under another agreement.  For example, the United States may seek to expand a defense assistance agreement that includes personnel assigned to the U.S. embassy or to a Military Assistance Advisory Group (MAAG).  A&T status is rarely granted for large-scale or long-term deployments.  The receiving state typically recognizes the A&T status of the deploying forces through an exchange of diplomatic notes or similar instrument.

(2)  Shared Jurisdiction.  Article VII of the NATO SOFA provides a scheme of shared jurisdiction between the receiving state and the sending state.  This scheme is the model for many other SOFAs.  All examples below assume a U.S. Service Member committing an offense while stationed in Germany.

(a)   Exclusive Jurisdiction in the Sending State.  Conduct that constitutes an offense under the law of the sending state, but not the receiving state, is tried exclusively by the sending state.  For example, dereliction of duty is an offense under the UCMJ, but not under German law, so exclusive jurisdiction rests with the United States.

(b)  Exclusive Jurisdiction in the Receiving State.  Conduct that constitutes an offense under the law of the receiving state, but not the sending state, is tried exclusively by the receiving state.  For example, a given traffic offense may violate German law, but not U.S. law, so Germany has exclusive jurisdiction.

(c)   Concurrent Jurisdiction.  For conduct that constitutes an offense under the laws of both the receiving and sending states, there is concurrent jurisdiction, with primary jurisdiction assigned to one party:

(i)   Primary Concurrent Jurisdiction in the Sending State.  The sending state has primary jurisdiction in two instances.   First, the sending state has primary jurisdiction when the sending state is the victim, or a person from the sending state (otherwise covered by the SOFA) is the victim.  This is known as inter se (“among themselves”).  For example, if a U.S. Soldier assaults another U.S. Soldier, it violates both U.S. and German law, but primary jurisdiction rests with the United States because the victim is from the sending state.  Second, the sending state has primary jurisdiction when the acts or omissions are committed in the performance of official duty.  For example, if a U.S. Soldier strikes and kills a pedestrian while driving to another post for a meeting, he or she could be charged with a form of homicide by both the United States and Germany.  However, since the offense was committed while in the performance of official duty, the United States retains primary jurisdiction.

(ii)  Primary Concurrent Jurisdiction in the Receiving State.  In all other cases, primary jurisdiction rests with the receiving state.  However, it is possible for the receiving state to waive its primary jurisdiction in favor of the sending state.  The NATO SOFA provides that “sympathetic considerations” shall be given to requests to waive jurisdiction.  For example, if a U.S. Soldier assaults a German national, it violates both U.S. and German law, and Germany has primary jurisdiction.  Upon request, Germany may waive its jurisdiction, in which case the U.S. may court-martial the Soldier.  Supplemental agreements may provide further detail regarding a waiver of jurisdiction.

(3)  Visiting Forces Acts.   If the United States does not have an agreement with a host nation, some nations still extend protections to visiting forces through domestic statutes commonly called Visiting Forces Acts.  Commonwealth nations are those most likely to have Visiting Forces Acts (e.g., Jamaica).  In general, these statutes provide a two-part test.  First, Visiting Forces Acts require that the domestic law of the receiving state list the sending state in accordance with its domestic law.  Second, the jurisdictional methodology is one of two types:  a jurisdictional model similar to the NATO SOFA, or protections equivalent to A&T status.  In any case, it is essential that the JA acquire a copy of the host nation’s Visiting Forces Act before deploying to that country.

(4)  No Protection.  U.S. forces may also deploy to a country where they are completely subject to the host nation’s jurisdiction.  While it is U.S. policy to maximize U.S. jurisdiction over its personnel, jurisdictional protection may not be feasible.  If a U.S. Soldier allegedly commits a crime in such a country, diplomatic negotiations may successfully secure a more favorable treatment for the Service Member.  JAs should remember that a lack of status protections is merely a planning factor for commanders, not a legal objection, but the decision to deploy forces to a nation without such protections is usually held at the COCOM level.

e.    The United States as a Receiving State.

(1)  Traditionally, the SOFA issues JAs face involve U.S. Service Members deployed to other countries.  In the post-Cold War era, foreign forces began routinely coming to the U.S. for training.  Some NATO countries have units permanently stationed in the United States.^[42]  The status of these foreign forces in the United States depends on agreements with the sending state.  Almost all U.S. SOFAs are non-reciprocal in nature.  For example, the Korean SOFA only applies to U.S. armed forces in the Republic of Korea (ROK).  Therefore, if ROK Soldiers are present in the United States, exclusive jurisdiction would rest with the United States.  On the other hand, the United States may have entered into a SOFA that is reciprocal, such as the NATO SOFA and the Partnership for Peace (PFP) SOFA.

(2)  There are complicated issues with jurisdiction over foreign forces in the United States.  Based on our federal system, if the international agreement under which foreign forces are seeking protection is a treaty, the provisions of the agreement are the supreme law of the land and are binding on both Federal and State jurisdictions.  Conversely, international agreements that are not treaties (executive agreements) are binding on the Federal government, but not generally on the states.  Absent additional legislation, a state prosecutor is free to charge a visiting Service Member for a crime under state law, regardless of the provisions of the executive agreement.  State prosecutors are typically willing to defer a prosecution as a matter of national interest, but it can be a delicate diplomatic situation.  JAs must also become familiar with the option of a foreign force to impose discipline on members of their force within the United States.  Just as the United States conducts courts-martial in host nation countries, reciprocal countries may wish to do the same in the United States.^[43]

f.     Exercise of FCJ by the Receiving State.  If U.S. military personnel are subjected to FCJ under any of the situations described above, the United States must take steps to ensure that the Service Member receives a fair trial.^[44]

g.    United Nations Missions.  Personnel participating in a United Nations (UN) mission typically will have status protections.  In some cases, the receiving state may grant UN forces “expert on mission” status.  This refers to Article VI of the Convention on the Privileges and Immunities of the United Nations, which grants complete criminal immunity.  Alternatively, the UN may negotiate a Status of Mission Agreement (SOMA).  The UN “Model” SOMA provides the sending State exclusive criminal jurisdiction.

h.    Article 98 Agreements and the International Criminal Court (ICC).  After the entry into force of the Rome Statute of the ICC in July 2002, the U.S. began negotiating Article 98 Agreements with other nations.^[45]  These agreements are so named after Article 98 of the ICC Statute, which provides:

(1)  The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

(2)  The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.^[46]

The United States negotiated and concluded many Article 98 Agreements to protect U.S. Service Members and other U.S. nationals from being subject to the ICC.  Article 98-type language may be integrated into a SOFA, diplomatic note, etc. to temporarily protect U.S. troops.  If a SOFA or other international agreement grants the United States exclusive or primary jurisdiction for offenses committed in the course of official duties, U.S. Service Members are protected from ICC jurisdiction.  For example, if the United States has a SOFA with country X that grants A&T Status to U.S. Soldiers (but no Article 98 Agreement exists), the host nation is required to recognize the United States’ jurisdiction over the offense.  Well before deployment, JAs should check with their technical chain of command regarding the existence of any applicable Article 98 Agreements and the impact of existing SOFAs on potential ICC jurisdiction.

i.     Claims and Civil Liability.  Claims for damages almost always follow deployments of U.S. forces.  Absent an agreement to the contrary (or a combat claims exclusion), the United States is normally obligated to pay for damages caused by our forces.  It is generally desirable for state parties to waive claims against each other.  In addition, it is not uncommon for a receiving state to agree to pay third party claims caused by U.S. forces in the performance of official duties, and release Service Members from any form of civil liability resulting from such acts.  For third party claims not caused in the performance of official duties, the United States may typically pay at its discretion such claims in accordance with U.S. law and policy (i.e., the Foreign Claims Act (FCA)).^[47]  However, the Service Member may remain subject to host nation civil jurisdiction, which may be mitigated by payments made under the FCA.

j.     Force Protection/Use of Deadly Force.  The general rule of international law is that a sovereign is responsible for the security of persons within its territory.  This does not, however, relieve the U.S. commander of responsibility for safety (i.e., self-defense) of the unit.  As part of pre-deployment preparation, the JA should determine whether the applicable agreement includes provisions regarding force protection and review the applicable rules of engagement.  While the host nation is generally responsible for the security of persons in its territory, it is common for the United States to be responsible for security internal to the areas and facilities it uses.  For example, Article III of the Korean SOFA provides that, in the event of an emergency, U.S. armed forces shall be authorized to take such measures in the vicinity of its facilities and areas as may be necessary to provide for their safeguarding and control.^[48]  The SOFA may also include a provision allowing military police the authority to apprehend U.S. personnel off the installation.

k.    Entry/Exit Requirements.  Passports and visas are the normal instruments for identifying a person’s nationality and verifying that the receiving state authorized their entry.  But the issuance of passports and visas to large numbers of military personnel is expensive, time consuming, and often impractical in an emergency.  The time it takes to process visa requests has a significant impact on operational flexibility.  As a result, most SOFAs authorize U.S. personnel to enter and exit the territory of the receiving state with their military identification cards and orders, or by other expedited procedures.  Regardless of such SOFA provisions, prior to deployment, JAs should confirm with COCOM legal personnel about the current general practice for gaining entry to host nations.

l.     Customs and Taxes.  While U.S. forces must pay for goods and services requested and received, sovereigns generally do not tax other sovereigns.  U.S. forces are normally exempt from paying host nation customs, duties, and taxes on goods and services imported to or acquired in the territory of the receiving state for official use.  Likewise, receiving states often exempt U.S. Service Members from paying customs or duties for personal items.

m.   Contracting.  SOFAs will also typically provide U.S. forces the authority to contract on the local economy for procurement of supplies and services not available from the host nation government.  As noted above, the SOFA should also ideally exempt goods and services brought to or acquired in the host country from import duties, taxes, and other fees.  This provision is designed to allow for the local purchase of some or all items needed, but does not alter or obviate other U.S. fiscal and contracting legal requirements.

n.    Vehicle Registration/Insurance/Drivers’ Licenses.  SOFAs or other agreements should exempt the U.S. from third party liability insurance requirements and any requirements for U.S. drivers to receive a license under the law of the receiving state. 

(1)  The U.S. Government is self-insured.  That is, it bears the financial burden of risks of claims for damages, and the FCA provides specific authority for the payment of claims.  As a result, negotiation of any agreement should emphasize that the United States does not need to insure its vehicles.

(2)  Although official vehicles may require marking for identification purposes, receiving states should not require the United States to register its vehicles.  In many countries, vehicle registration is expensive.  Privately-owned vehicles, however, may be required to register with the receiving state upon payment of only nominal fees to cover the actual costs of administration.

(3)  A provision for U.S. personnel to drive official U.S. vehicles with official U.S. drivers’ licenses expedites the conduct of official business.  In the alternative to honoring U.S. drivers’ licenses, receiving states may agree to issue a license based on the possession of a valid U.S. license without requiring additional examination.

o.    Communications Support.  When U.S. forces deploy, commanders rely heavily upon communications to exercise command and control.  Absent an agreement to the contrary, host nation law governs the commander’s use of frequencies within the electro-magnetic spectrum.  This includes not only tactical communications, but also commercial radio and television airwaves.  This can greatly impact operations and should be addressed early in the planning process. 

2.    Logistics Agreements.

a.    Pre-Positioning of Materiel.  If the U.S. needs to pre-position equipment or materiel in a foreign country, an international agreement should contain the following provisions:

(1)  Host nation permission for the United States to store stocks there.

(2)  Unimpeded United States access to those stocks.

(3)  Right of removal, without restriction on subsequent use.

(4)  Adequate security for the stocks.

(5)  The host nation must promise not to convert the stocks to its own use, nor to allow any third party to do so (i.e., legal title remains vested in the United States).

(6)  Appropriate status protections for U.S. personnel associated with storage, maintenance, or removal of the stocks.

b.    Negotiation.  In some cases, the DoD GC has allowed some leeway in negotiating pre-positioning agreements, provided that host government permission for U.S. storage in its territory and unequivocal acknowledgment of the U.S. right of removal are explicit.  Legal title need not be addressed per se, if it is clear the host government has no ownership rights in the stocks, only custodial interests, and that pre-positioned stocks are solely for U.S. use.  Access to the pre-positioned stocks need not be addressed explicitly, unless U.S. access is necessary to safeguard them.  There can be no express restrictions on U.S. use.  Prior consultation for U.S. removal of pre-positioned stocks is not favored, and prior approval is not acceptable.  Conversion need not be specifically addressed, if it is clear that the pre-positioned stocks’ sole purpose is to meet U.S. requirements.  Security must be specifically addressed only when stores are at risk due to their value.  “Privileges and immunities” are required only when it is necessary for U.S. personnel to spend significant amounts of time in the host country to administer, maintain, guard, or remove the stocks.

c.    Host Nation Support.  When a unit deploys to a foreign country, some of its logistical requirements may be provided by the host nation.  If so, it is desirable to have an international agreement specifying the material the host nation will provide and on what conditions, such as whether it is provided on a reimbursable basis.

d.    ACSA.  Chapter 138 of Subtitle A of Title 10, U.S.C. also provides authority for government-to-government ACSAs for mutual logistics support.  Under 10 U.S.C. § 2341-2350, U.S. forces and those of an eligible country^[49] may provide logistics support, supplies, and services on a reciprocal basis.  Such support, supplies, and services are reimbursed through: replacement in kind; trade of support, supplies, or services of equal value; or cash.  There are limits on the total amount of liabilities the United States may accrue under this subchapter, except during a period of active hostilities.^[50]  In addition, units cannot use ACSAs as a substitute for normal sources of supply, or as a substitute for FMS procedures.  Prohibited items are those designated as significant military equipment on the U.S. Munitions List.  For additional guidance on ACSAs see the Fiscal Law Chapter.

e.    Cryptologic Support.   10 U.S.C. § 421 authorizes SECDEF to use funds appropriated for intelligence and communications purposes to pay the expenses of arrangements with foreign countries for cryptologic support.  This authority has been frequently used as the basis for agreements to loan communications security (COMSEC) equipment, such as message processors or secure telephones, to allied forces.  JAs should be prepared to provide advice on related technology transfer issues and issues surrounding the disclosure of classified information.  One of the key provisions of any COMSEC agreement is the assurance that the receiving state’s forces will not tamper with the equipment in an effort to retro-engineer its technology.^[51]