MISSION COMMENTS: MINISTRY OF DEFENSE DRAFT

C O N F I D E N T I A L SECTION 01 OF 02 BRASILIA 000325

SIPDIS

NOFORN

E.O. 12958: DECL: 02/04/2015
TAGS: MARR MASS PREL BR ASPA
SUBJECT: MISSION COMMENTS: MINISTRY OF DEFENSE DRAFT
U.S.-BRAZIL DEFENSE COOPERATION AGREEMENT

REF: BRASILIA 311

Classified By: DEPUTY CHIEF OF MISSION PHILIP CHICOLA, REASONS
1.4 (B &
D)


1. (C) After initial review of the Ministry of Defense
(MOD) draft accord (reftel),Mission believes the Brazilian
document is an excellent launching point for negotiation of a
Defense Cooperation Agreement (DCA). While the MOD version
is bare-bones, it also provides a strong negotiating
foundation on which both countries can build a more elaborate
bilateral cooperative structure. Given the constant
challenges to the bilateral mil-mil relationship since
Brazil's 1980 abrogation of the 1952 Mutual Defense
Assistance Treaty, completion of a DCA should be among our
most important political-military objectives. We understand
the MOD wants to move quickly on this.


2. (C) The key to the MOD draft, we feel, is Article 10
"Revision". The GOB is well aware of the USG position on a
variety of pol-mil issues including SOFA, Article 98, etc.
However, it is also cognizant of what will and will not fly
with Brazil's congress which must approve any accord. By
leaving the amendment or revision of the accord within
diplomatic channels, the MOD is allowing that contentious
issues in the future can possibly be resolved without
recourse to Brazil's legislative process. The amendment
mechanism being proposed will assure a smoother ride when
such issues inevitably arise. Mission provides other issues
which may be a component of our negotiation strategy.


3. (C) Following are Mission comments for consideration by
USG and are specific to the Brazilian text:

Article 1 "Objective"

We suggest adding a clause: "Authorizing access to and use of
such facilities and areas in the territory of the other Party
as may be mutually agreed;"

***

Article 2 "Scope of Cooperation"

After we noted the absence of the MLO in the draft, the MOD
has informally agreed to add clause J to include the Military
Liaison Office. We suggest "J. Maintenance in the territory
of the other Party liaison offices and commissions, to
include the Military Liaison Office of the United States and
the xxxxxxxxxx of Brazil, with appropriate privileges and
immunities extended to the office staffs and commissions on a
reciprocal basis."

***

New Article "Availability of Equipment, Assistance, Services,
and Property"

"1. Each Party will make available or continue to make
available to the other such equipment, materials, services or
other military assistance, as the Party furnishing such
assistance may authorize and in accordance with such terms
and conditions as may be agreed;


2. Title to property of each Party imported on behalf of the
armed forces into or acquired in the territory of the other
Party in connection with the activities in this Agreement,
shall remain with the originating Party which may remove such
property from the territory of the other Party at any time,
free of export duties, taxes, and other charges;


3. Such property may also be disposed of in the territory of
the other Party provided that disposition of such property to
persons not subject to exemption from applicable taxes or
duties shall be subject to payment of applicable taxes and
duties by such persons or entities."

***

Article 3 "Financial Responsibilities"

Add Clause D. "Reasonable costs associated with the provision
of logistical support are rates or charges no less favorable
than those available to the armed forces of the other Party,
excluding taxes, fees, and similar charges."

***

Article 5 "Civil law Responsibilities"

Add Clause "Personnel of each party shall respect the laws
of the other Party and abstain from any activity inconsistent
with the letter or spirit of this Agreement."

***

New Article "Custody of Personnel"
"A. Notwithstanding the provisions of this or other
Agreements to which both the United States and Brazil are
Party, if local authorities detain any personnel of the other
Party, the authorities of that Party shall notify the Embassy
of the other Party and as promptly as feasible return the
personnel to the custody of the other Party.


B. Parties confirm that the personnel of the other may not
be surrendered to, or otherwise transferred to, the custody
of another entity, state, or international tribunal without
the express consent of the other Party."

***

New Article "Status of Military and Civil Personnel"

"A. During exercises in the territory of the other Party,
personnel assigned to the exercise shall be permitted to
enter and exit with appropriate national identification and
with collective movement or individual travel orders;


B. Personnel from each Party shall be authorized to wear
uniforms while in performance of official duties;


C. Military and civilian personnel of each Party associated
with commissions and liaison offices in the territory of the
other Party, shall be accorded a status equivalent to that
accorded under the Vienna Convention on Diplomatic Relations
of April 18, 1961."


4. (C) Mission considered but did not believe necessary at
this time language allowing freedom of movement and the
bearing of arms. The highlighting of weapons, even under
official sanction, could be a lightning rod for political
debate within Brazil's congress and could be accomplished
through the revision mechanism. Mission also weighed as
unnecessary the inclusion of an article on each party's
acceptance as valid the professional licenses of the other
party.


5. (C) Mission is uncertain whether the MOD draft has
received the full blessing of the Ministry of External
Relations (MRE),however, we understand that Brazilian
Ambassador Abdenur may have already shared the paper with
Washington interlocutors. While the MRE would be involved in
negotiations on a DCA, experience here suggests they would
defer on most substantive issues to MOD, concentrating at MRE
on diplomatic format and potential legal issues. With Vice
President/Minister of Defense Alencar's evident support for
prompt conclusion of a DCA, the impetus is there to get this
agreement through the GOB bureaucracy. Thus, we believe
substantial momentum on moving a DCA forward can be achieved
during the next few weeks.

Danilovich