Definition of an International Agreement

Enclosure (1) to COMDTINST 5710.3

DEFINING AN INTERNATIONAL AGREEMENT

1. Binding vs. Non-binding. There are two types of international undertakings: formal

international agreements and informal non-binding international arrangements. DoS must

approve all formal international agreements through the C-175 process; although informal

arrangements do not require C-175 review, they do require review and clearance through

Commandant (G-LMI). The purpose of the C-175 process is to achieve interagency

consensus that a proposed international undertaking is consistent with U.S. policies and

objectives before commencing formal negotiations. Consequently, a grant of C-175

authority to negotiate an agreement is a precondition to opening formal discussions with a

foreign country.1 Coast Guard commands and headquarters offices must seek guidance,

therefore, from Commandant (G-LMI) before opening formal discussions on agreements

with any foreign government. This guidance must be concluded well enough in advance of

negotiations so that Commandant (G-LMI) can confirm with DoS whether the undertaking

requires C-175 authority, and so that there will be sufficient time for the C-175 process to

occur.

(a) An international agreement may be any undertaking, including an oral agreement,

document, set of documents, an exchange of notes or of correspondence. Reference (c)

provides that "whether any undertaking, document, or set of documents constitutes or

would constitute an international agreement within the meaning of [the law] shall be

determined by the Legal Adviser of the Department of State, a Deputy Legal Adviser, or

in most cases the Assistant Legal Adviser for Treaty Affairs. Such determinations shall

be made either on a case-by-case basis, or on periodic consultation, as appropriate." For

any undertaking to qualify as an international agreement, it must meet the following five

criteria.

i. Identity and intention of the parties. Only a state (i.e. the U.S. or a foreign

government), state agency, or international governmental organization may be a party

to an international agreement. The parties must intend their undertaking to be legally

binding and governed by international law. In the absence of any provision in the

agreement with respect to governing law, it will be presumed to be governed by

international law.

ii. Significance of the undertaking. The determination of whether a particular

undertaking is an international agreement resides by law with the DoS Assistant Legal

Adviser for Treaty Affairs (L/T), not with the Coast Guard. DoS will take the entire

context of the transaction and the expectations and intentions of the parties into account

in determining if it rises to the level of an international agreement. Factors in gauging

significance include: (a) its political significance; (b) the amount of funding, loans or

credit payable to the United States; (c) whether the funding arrangement extends

beyond the fiscal year or would be the basis for requesting new appropriations; (d)

C-175 authority is not a precondition to informal discussions. Rather, C-175 authority is needed when discussions or

negotiations will bind the United States.