After the originating agency determines that a cooperative activity with a foreign government entity is desirable or necessary, the agency drafts an instrument and conducts an internal review and clearance process, including review by its general counsel or legal adviser. Part of the review should include a determination of whether the agency wishes the text to be legally binding under international law.
For an international agreement, i.e., one intended to be legally binding, the agency must submit a package comprising three components: a Background Document, a Draft Text, and the agency's Legal Review to the Department of State for action (see Chapter 3). The draft should be submitted to the Director, Office of Science and Technology Cooperation, Bureau of Oceans and International Environmental and Scientific Affairs (OES/STC). Space-related agreements, as well as those dealing with remote sensing and Global Positioning System, should continue to be forwarded to the OES Office of Space and Advanced Technology staff (OES/SAT). Health-related agreements should be directed to the OES Office of Emerging Infectious Disease staff (OES/EID). Nuclear energy, non-proliferation and certain defense agreements will continue to be processed by other specialized offices within the State Department, but for convenience agencies may forward them to OES/STC for logging and further distribution within the State Department.
Whenever, in an agency's view, there is any question as to whether a proposed undertaking constitutes an international agreement, it should consult with the State Department, which will provide a timely authoritative opinion. If the agency seeks authoritative help in drafting or revising a draft agreement to be legally non-binding, the agency may submit a Letter or Memorandum explaining its intention and any relevant history (see the Flow Chart).
As a general rule, provisions that seek to establish specific obligations for the two sides (e.g., customs clearances, provision of privileges and immunities, protection of intellectual property, creation of an international organization or commission, etc.) would generally be incorporated into a legally binding international agreement. Moreover, as noted in the C-175 Handbook, extensions of and substantive amendments to existing international agreements are generally considered the equivalent of new international agreements; therefore, they require a separate C-175 authorization. This requirement applies unless the original C-175 explicitly contemplated and approved such subsequent extensions or revisions.
2. Action by the Department of State
Upon receipt of the agency's draft agreement with supporting documents, the documents are first logged into a register to acknowledge receipt and permit subsequent tracking. The Director of OES/STC, OES/SAT, or OES/EID then assigns an action officer to manage the proposed agreement through the C-175 interagency clearance and authorization process, or to arrange for a preliminary opinion or further action by the State Department's Office of the Legal Adviser, according to the agency's wishes.
In the instance of a preliminary legal determination, the Office of the Legal Adviser's Treaty Office can exercise any of the following three options (also see the Flow Chart):
For most routine S&T agreements, the action officer reviews the package to ensure that all needed information has been supplied. The action officer then researches archives to review records of relevant previous agreements and attaches a copy of any bilateral S&T agreements to which the draft agreement may be subject.
The action officer then drafts a Decision Memorandum for signature by the Assistant Secretary, who has been delegated authority to grant C-175 authorizations for routine science and technology agreements. The action officer is responsible for ensuring that the agreement does not contravene established foreign policies of the USG and that it is in the interest of the United States to conclude the agreement.
The action officer then initiates the clearance process. The Decision Memorandum and draft agreement with background attachments are circulated to the Assistant Legal Adviser for Treaty Affairs (L/T), the Assistant Legal Adviser for Oceans and International Environmental and Scientific Affairs (L/OES), and, if needed, to the Assistant Legal Adviser for the geographic region. Internally, it is also circulated to the country and regional affairs desks of the appropriate regional bureau(s); the Intellectual Property and Competition Division of the Bureau of Economic and Business Affairs (EB/TPP/MTA/IPC); the Office of Legislative Management in the Bureau of Legislative Affairs (H); the Office of the Under Secretary for Global Affairs (G); the Office of Budget and Planning, Bureau of Finance and Management Policy (FMP); the Office of Management, Policy and Planning of the Office of the Under Secretary for Management (M/P); other policy offices in OES and other bureaus, as needed; and to appropriate staff in the overseas embassy or consulate.
Externally, the agreement is circulated to the Office of Science and Technology Policy in the White House (OSTP); the Office of Management and Budget (OMB); the Office of the United States Trade Representative (USTR); and other U.S. Government departments and agencies that may have an interest in the matter. Typically, these include, but are not limited to, the Departments of Agriculture, Commerce, Defense, Energy, Health and Human Services, Transportation, Interior, and Treasury as well as the U.S. Agency for International Development (USAID), the National Aeronautics and Space Administration (NASA), the National Science Foundation (NSF), and the intelligence community. A copy of the package with a list of clearing agencies and offices is furnished to the originating agency, which can suggest additional clearances.8
The action officer is responsible for ensuring timely clearances and for seeking to address and resolve questions, problems or non-concurrence with the draft agreement. The action officer also analyzes the proposed agreement to ensure that it is congruent with overall U.S. foreign policy. When all clearances have been received and any changes cleared with the originating agency and essential legal and other offices, the action officer modifies the Decision Memorandum as necessary and submits the agreement for C-175 authorization, including the Office Director's recommendation to grant C-175 authority. After the OES Assistant Secretary has granted C-175 authorization, the officer notifies the originating agency (see the Flow Chart).
As the principal manager of C-175 process, the action officer will seek to complete the process for each agreement within the 20-day regulatory timeline,9 insofar as resources and interagency cooperation permit, and in the absence of complicating policy, legal, and other factors. In any case, the action officer will provide a status report to the originating agency within that period, including the establishment of a revised timeline estimate. In the event of a subsequent delay, the action officer will initiate a process to resolve any conflicts and minimize any further delay.
3. Post-C-175 Action by the Originating Agency
After C-175 approval has been granted, the agency is authorized to negotiate and to sign the agreement (assuming authority has been granted for both). However, if any substantive changes to the agreement are proposed by either side subsequent to its C-175 approval, these changes must be resubmitted to the Department of State to clear with relevant internal and external offices and agencies prior to the final signature. Ordinarily, the changes, once approved, will not require a new grant of C-175 authority.
After the agreement is signed, the original or a certified true copy in all its languages must be provided to the State Department's Office of the Treaty Affairs so that it can forward the agreement to Congress, as required under the Case-Zablocki Act, as well as for appropriate archiving.
9See Coordination, Reporting and Publication of International Agreements - 22 CFR section 181.4(c) in Appendix D.