Chapter 5: Points on Drafting International Agreements
In drafting international agreements, the agency should observe certain conventions regarding their form and structure:
1. Parity of Parties: The agency must ensure that the foreign entity with which the proposed agreement is expected to be signed is legally competent to sign for its government and is:
a) A foreign government, department, or agency;
b) Equivalent to the proposed U.S. party, i.e., government-to-government or agency-to-agency;
c) Not a foreign university or foreign government corporation; and
d) Not a sub-agency level entity that has no independent authority to sign or negotiate international agreements.
2. Number of Signatories: Although there may be multiple entities which are party to the agreement, there must be only one signatory for the U.S. Government.
3. Agreement Subject to Existing Bilateral S&T Umbrella Agreements: If the proposed agreement is subject to an existing S&T umbrella agreement, a reference to that agreement should be made explicit. For example, the following language may be used:
This agreement or memorandum is subject to the "Agreement for Scientific and Technical Cooperation between the Government of the United States of America and the Government of [insert as appropriate]. [signed and dated]," hereinafter referred to as the "Agreement."
4. Scope of Activities: The agency must verify that the activities listed in the proposed agreement are:
a) Within the scope of any existing umbrella agreement, if applicable;
b) Within the scope of the agency's legal and programmatic competence;
c) Desirable in light of the status of general bilateral relations with the country, on-going scientific and environmental activities, trade implications, and the interests of U.S. industry; and
d) Designated as either optional or mandatory.
5. Funding: If the activities under the proposed agreement are subject to the availability of appropriated funds, the agreement should make that explicit. For instance, the following language, or something similar, may be used:
All activities under this agreement are subject to the appropriated funds and resources.
7. Third Tier Issue: If the proposed agreement is to implement an existing agreement, creation of a third layer of contemplated implementing agreements should be avoided.
8. Customs Clearances/Arrangements: Many agencies and their foreign counterparts seek reciprocal exemptions from customs fees or tariffs on equipment and materials transported into and from the other Party's territory that are used in cooperative activities through a special section in the agreement. This section can generally be expanded to include coverage of personal effects of personnel involved, but should not be extended to cover sales, VAT, income, or property tax exemptions.
9. Security Obligations: Many agreements contain an annex on security obligations. The annex typically contains two parts: The first is designed to protect against the provision or disclosure of information or equipment that is classified or protected due to national defense or foreign policy reasons. Typically there will be a provision to notify and consult the other Party when one Party becomes aware that such classified or protected information or equipment has been provided to it. The second part concerns technology transfer, and aims to ensure that export-controlled information or equipment is transferred lawfully and not re-transferred without authorization.
10. Scientific and Technical Information: This section supports the ideal of making non-proprietary scientific and technical information freely available to the scientific community and is a commonly used clause, especially in framework agreements. Allocation of intellectual property rights is occasionally included under this section. (For a fuller treatment of intellectual property, see number 7 above).
11. Duration of the Agreement: If the proposed agreement is to implement an existing umbrella agreement, the duration of the two agreements should be co-terminus, i.e., the duration of the proposed agreement should not exceed the current duration of the umbrella agreement.
12. Final Clause: The following text represents the recommended language for the closing section of a proposed agreement:
DONE at [insert city name] in duplicate in the English language, this [insert date spelled out] day of [insert month spelled out] [insert year].
Or if in two languages:
DONE at [insert city name or names] in duplicate in the English and [insert other language] languages this [insert date] day of [insert month] [insert year], both texts being equally authentic.
If the proposed agreement will be in one or more foreign languages, the Department of State's Office of Language Services must certify that the English and foreign language text are equally authentic.
13. Signature Headings: The signature headings must be single-spaced in capital letters and followed by a colon. Titles are not included and the names of the individuals signing are not typed on the agreement. Individuals should sign below the signature block. Examples are given below:
FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF
THE UNITED STATES OF AMERICA: THE REPUBLIC OF THAILAND:
Or if the agreement is between agencies or departments:
FOR THE GEOLOGICAL SURVEY OF FOR THE SECRETARIAT OF
THE DEPARTMENT OF THE INTERIOR ENERGY, MINES, AND
OF THE UNITED STATES OF PARASTATAL INDUSTRY
AMERICA: OF THE UNITED MEXICAN STATES: