US embassy cable - 05BRASILIA325

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