Overview of International Commitment Process
DOE pursues a variety of science and technology goals with other governments and international organizations, like sharing scientific data, cooperating research and development of common interest, and sharing scientific expertise, methodologies, and facilities, all of which motivate establishing relationships through agreements with foreign counterparts.
International science and technology agreements have two forms, legally binding (including intergovernmental treaties approved by Congress and executive-type government-to-government or agency-level agreements) and informal arrangements with no legally binding effect. Agreements of both types are signed at various levels of government, from the Executive Office of the President to program and project levels within a specific agency. There are also international commitments which have no written agreement, like for energy dialogues that provide a framework for consultation on policy issues.
The term commitment refers to both signed agreements and commitments without written agreements.
"Framework" or "umbrella" agreements are typically intergovernmental in nature, such as the bilateral science and technology agreements between the United States and other countries. They identify the broad areas of science and technology under which cooperation between two foreign parties is desirable and encouraged, contain general provisions governing the parties’ collaboration, and authorize subordinate agency-level implementing agreements or arrangements for conducting specific technical cooperation.
In addition, a framework agreement for conducting collaborative research and development delineates how intellectual property created or provided within the framework of the agreement will be protected (e.g., business-confidential information) and allocated (e.g., inventions, patents, royalties).
Formal agency-level agreements, whether subordinate to a government-to-government “umbrella” or “framework” agreement or freestanding, establish the details of cooperation between government ministries or their agencies. Typically, such agreements include, in addition to the mutually-agreed areas (subjects) and forms (e.g., R&D) of collaboration, provisions defining the process for exchange and visits of scientists and other technical personnel; transfer of equipment, materials and samples; and terms governing the exchange of information.
Informal agreements, which may be government-to-government or agency-level, can be called, variously, Memorandum of Understanding, Statement of Intent, Declaration of Principles, Joint Statement, etc. These instruments typically set out political (but not legally binding) commitments; and may – but need not -- state the signatories’ intention to conclude a formal, legally-binding agreement, to be negotiated and concluded in the future. Only national governments, their ministries/agencies, and international organizations can be signatory parties to legally binding agreements. A wider universe of entities, like DOE laboratories or semi-public foreign entities, may be signatories to MOUs and other informal arrangements.
International cooperation in science and technology not involving the R&D or the transfer of congressionally-appropriated funds go on without the benefit of or reference to a formal international agreement. In addition, collaborative activities may be conducted under the auspices of other instruments, such as a contract, grant or other cooperative agreement, Cooperative Research and Development Agreement (CRADA), or Work-for-Others.
Requirements for Interagency Review and Authorization to Negotiate and Sign – Circular 175
The Case-Zablocki Act of 1977 (1 USC 112b) gives the U.S. Department of State primary responsibility to coordinate and oversee significant international agreements and activities between the United States and a foreign state, state agency, or intergovernmental organization. State Department’s role is to ensure the agreement does not contravene established U.S. foreign policies and that it is in the best interest of the United States to conclude the agreement.
“Circular 175” is the name of the State Department-led inter-agency review process that implements the statutory requirements in the Case-Zablocki Act for ensuring that agencies obtain authority to negotiate and conclude legally binding international agreements and report conclusion of such agreements to the State Department. The procedures for circulating proposed legally binding international agreements among relevant government agencies for approval are laid out in the State Department’s Foreign Affairs Manual, Section 720. U.S. Government agencies and departments report to State Department on the agreements concluded under Circular 175 authority, and State lists them in an annual foreign affairs report to the U.S. Congress.
The nature of the cooperation determines the language of the agreement and the approval process.
Significance is determined by the expectations and intent of the parties, i.e., the agreement involves more than one agency of government and/or is legally binding, the activity captured in the agreement is politically significant, and the commitment of USG funds and cooperation is substantial and continuing. The agreement must also be specific on the undertakings of the parties, including criteria for enforcement and performance.
Below are some examples of terms that indicate legally binding versus non-binding intent:
|Language that May Indicate an Intention to be Legally Bound||Language that May Indicate an Intention Not to be Legally Bound|
|Shall, will, agree, commit||Plan to, intend, expect, should|
|Commitment, agreement||Understanding, statement, declaration|
|Parties, party||Participants, countries, institutions, sides|
|Agreement, treaty, convention, protocol||Statement, arrangement, mechanism|
|Entry into force||Date activities commence, today’s date|