BRAZIL REJECTS SOFA REQUEST FOR BRAZILIAN AIR FORCE ANNUAL

UNCLAS SECTION 01 OF 02 BRASILIA 001365

SIPDIS

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SIPDIS

E.O. 12958: N/A
TAGS: MARR MOPS MASS KTIA US BR
SUBJECT: BRAZIL REJECTS SOFA REQUEST FOR BRAZILIAN AIR FORCE ANNUAL
TRANSPORT AVIATION MEETING

REF: A) STATE 100160
B) 05 BRASILIA 2538

BRASILIA 00001365 001.2 OF 002



1. Poloff delivered reftel's talking points and draft dip notes,
July 5, to Virginia Toniatti, the MFA's General Coordinator Against
Transnational Crime (COCIT). In response to the draft note and
Poloff's assertion that the USG would like to conclude a long-term
SOFA agreement with Brazil, Toniatti declared that COCIT had already
answered and denied similar requests in previous years, most
recently in July and September of 2005. She added that there had
been no alteration in the GoB's legal position or in the relations
between the U.S. and Brazil that would modify the Brazilian
response. Although the GoB could not exchange notes utilizing the
proposed language, COCIT did agree to afford U.S. military personnel
the same privileges as in previous exercises. If necessary, the GoB
will transmit a new note, similar to diplomatic note 79 from
September 2005, confirming these protections.


2. Text of Dip Note 79 (ref B)

COCIT / DEUC / 079 / PEXT-BRAS-EUA - September 9, 2005
a. The Ministry of Foreign Affairs presents its compliments to the
Embassy of the United States of America and has the honor to refer
to Dip Note #250 sent by the U.S. Embassy on 26 July 2005, regarding
the concession of additional privileges and immunities to U.S
military personnel participating in joint military exercises in
Brazilian territory. The Ministry regrets not to be in agreement
with all the terms of the referred note and reminds the Embassy that
the subject has been under discussion, via exchange of
correspondence with the Embassy, since September 2002, and the last
manifestation from the Brazilian Government in this respect was
stated in Dip Note #050, dated 4 July 2005.

b. The Ministry is not in the position to provide additional
guarantees to the status of privileged to U.S. military personnel.
The GOB understanding is that the concession of additional
immunities of jurisdiction to U.S. personnel involved in joint
exercises in Brazil is subject to the terms established by the 1961
Vienna Convention on Diplomatic Relations, and based on the
principle of juridical equality of states, and on the constitutional
principle of isonomy among nationals and foreigners.

c. As stated in paragraph 4 of the referred note #50, the Brazilian
Law accepts the rules of International Law that establishes that
foreign military vessels and aircrafts enjoy extraterritoriality.
In this sense, crimes committed aboard these vessels and aircrafts
are not subject to the Brazilian legislation. In the same way,
crimes committed in Brazilian territory by foreign military
personnel, while fulfilling their duties, are not subject to
Brazilian jurisdiction, but to the jurisdiction of the perpetrator's
country of nationality. Brazilian courts, however, have
jurisdiction over crimes committed by foreign military personnel, in
Brazilian territory, when they are not in the fulfillment of the
duties related to joint military exercises with the Brazilian Armed
Forces. In this last case, Brazilian courts would act independently
of any consultation between the two governments, based on
constitutional principles that establish the separation of powers in
the Republic.

d. Under these conditions, the Ministry stresses to the Embassy
that, while organizing joint military exercises in the Brazilian
territory, the officials involved must take these facts referred
above into consideration.


3. Text of Dip Note 50 referred to in paragraph 2.a

COCIT / DEUC / SPD / 050 / PEXT-BRAS-EUA - July 4, 2005
a. The Ministry of Foreign Relations compliments the Embassy of the
United States of America and has the honor to refer to Diplomatic
Note number 181 from the U.S. Embassy, dated June 13, 2005, about
the concession of privileges and additional immunities, for the
designation of U.S. militaries to participate in military exercises
together with the Brazilian Forces in Brazil. The Ministry agrees
that the issue has been object of exchange of notes with the U.S.
Embassy since September, 2002, and that the position of the
Brazilian Government was transmitted to the U.S. Government on notes
number 91 (10-04-2002),08 (02-04-2005) and 15 (03-08-2005).

b. The Brazilian Government has no means to assure the U.S.
militaries any additional guarantees as a status of privilege, as an
example of the personnel condition as temporary diplomatic mission,
based in the U.S. Liaison Office in Brazil. The concession of
equivalent diplomatic status granted to administrative and technical

BRASILIA 00001365 002.2 OF 002


personnel to the Embassy to U.S. militaries involved in joint
exercises with Brazil, shall necessarily fall into what the 1961
Vienna Convention states about Diplomatic Relations (noted in
articles 29, 31 and 37)

c. The Ministry considers that the terms the request was made would
hinder that such concession be in accordance with the jurisdiction
of National courts to judge as crimes of U.S. militaries in Brazil,
according to the Brazilian Penal Law. This would also go against
the Principle of Equal Jurisdiction of States, the Constitutional
Principle of Isonomy between Nationals and Foreigners and the
Brazilian Practice in similar cases.

d. The Ministry has reiterated to the Embassy that, up to this
moment, there has not been any agreements between Governments of
both countries regarding this matter and that the Brazilian Law
agrees with the International Law, which foreign military ships and
aircrafts avail of extraterritoliality. Having mentioned this,
crimes committed on such ships and aircrafts are not object to the
Brazilian Law. In addition, crimes committed on the Brazilian
grounds by foreign military agents while in their duties are not
submitted to the Brazilian jurisdiction, but the State of the
incumbent's nationality. The Brazilian jurisdiction acts, however,
in cases of crimes committed by foreign militaries if they are not
in duties related to military exercises with the Brazilian
Authorities.

e. The Ministry reminds the Embassy that the Brazilian and the U.S.
Army have been working on joint military exercises on Brazilian
grounds in a smooth and uninterrupted way for almost half century.
The Brazilian Government has made sure that basic conditions to the
full development of their activities be guaranteed to the
participants of such exercises. The Ministry notes the existence of
the joint exercise "PKO South" on Brazilian soil and the
cancellation of the "Patriot Angel" exercise in common agreement
between Air Force authorities of both countries.

f. The Ministry transmits to the Embassy that the Brazilian
Government expects that The Brazilian and the U.S. Forces continue
with their joint military exercises, such as the upcoming edition of
UNITAS. To stress so, the Ministry reiterates the position of the
Brazilian Government that such exercises be developed in the same
terms as previous exercises regarding the immunity of jurisdiction
to foreign militaries (terms previously mentioned in paragraph 4).
Brazil does not consider that any fact or initiative have occurred
in order to justify changes in the relations between Brazilian and
U.S. militaries or any cancellation of exercises that have been
developed for years in an excellent prosperous atmosphere.

g. Finally, The Ministry expresses to the Embassy that
communications regarding this matter, in order to be considered
official, shall be directed to Itamaraty, the authority with proper
responsibilities, and the body that handles grants of privileges and
immunities to foreign officers who visit the country.

WILLIAMSON