Supplementary Handbook on the C-175 Process: Routine Science and Technology Agreements
Bureau of Oceans and International Environmental and Scientific Affairs
January 2001
Report

The purpose of this Supplementary Handbook is to streamline and expedite the C-175 process for routine international science and technology agreements.1 In place since 1955, the C-175 process involves interagency review and clearance of proposed international agreements, culminating in a decision by the Secretary of State or the Secretary's designee to approve or deny their negotiation, conclusion, or termination. 2

The C-175 process serves as the vehicle to implement the U.S. law that gave the State Department primary responsibility to coordinate and oversee major science and technology agreements and activities between the United States and foreign countries, international organizations, or commissions.3 Moreover, the Case-Zablocki Act specifies that, not withstanding any other provision of law, an international agreement may not be signed or concluded on behalf of the USG without prior consultation with the Secretary of State.4 The implementing regulations for the Case-Zablocki Act make it clear that the consultation requirement extends to agreements entered into in the name of the USG or in the name of any USG agency. 5

In this Supplementary Handbook, "routine" is meant to refer to those agreements, whether or not subject to umbrella agreements, which do not have such significant budgetary, legal, or political implications as to warrant extensive legal, political, or other high level review and approval. It is designed to assist United States Government (USG) agencies whose proposed agreements qualify for this abbreviated C-175 clearance process. It is not designed to cover agreements related to defense or large multilateral undertakings (e.g., the agreement covering the International Space Station). Similarly, some undertakings, such as the exchange of regular correspondence or arrangements that cover minor activities not meeting the significance test of international agreements are not ordinarily subject to the C-175 process; therefore, they are not covered in this Supplementary Handbook. 6

For a text to qualify as an international agreement, it must meet the following five criteria: 7

  1. Identity and intention of the parties: A party to an international agreement must be a state, state agency or international organization. The parties must intend their undertaking to be legally binding and governed by international law. In the absence of any provision in the arrangement with respect to governing law, it will be presumed to be governed by international law.
  2. Significance of the arrangement: Minor undertakings, even if couched in legal language and form, are not considered international agreements. The entire context of the transaction and the expectations and intentions of the parties must be taken into account in determining if it rises to the level of an international agreement. For example, a promise to detail one employee to a foreign government would not be an international agreement; a promise to detail 100 employees per year for the next 10 years may be an international agreement. The judgement that an agreement meets the test of significance may be based on such factors as: (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) continued and/or substantial cooperation in the conduct of a particular program or activity, such as scientific, technical, or other cooperation, including the exchange or receipt of information and its treatment, or the pooling of data. However, individual research grants and contracts do not ordinarily constitute international agreements. Likewise, regular exchanges of correspondence and agreements to conduct single activities, such as a workshop, likely would not meet the significance test.
  3. Specificity, including objective criteria for determining enforceability: International agreements require precision and specificity in the language setting forth the undertakings of the parties. Undertakings couched in vague or very general terms lacking criteria for determining enforceability or performance are not normally considered international agreements.
  4. Necessity for two or more parties: While unilateral commitments on occasion may be legally binding, they do not constitute international agreements.
  5. Form: Unlike the preceding four criteria, form by itself is not determinative of whether a particular text constitutes an international agreement. For example, the title alone will not determine whether a particular text constitutes an international agreement. On the other hand, failure to use the customary format throughout a document may constitute evidence of a lack of legally binding intent.

Legally binding intent is a key criterion of international agreements. A proposed international agreement must contain language evincing an intention to be legally bound under international law. This is a criterion not found in political statements or undertakings (where there is no intention to create legal obligations) or contracts (where the intent may be to create legal obligations, but not ones subject to international law). Although there is no single word or "magic phrase" that automatically determines the existence of legally binding intent, the use of binding language anywhere in a text may be considered as evidence that an international agreement is intended, for which C-175 authority would be required. The table below lists some examples of terms that are generally viewed as indicative of legally binding versus non-binding intent:

If a scroll bar appears below the following table, swipe the table to move left/right of the dashed line.

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

_____________________
1Streamlining the C-175 process was one of the recommendations in the study conducted by the National Research Council (1999), The Pervasive Role of Science, Technology and Health in Foreign Policy: Imperatives for the State Department, pp. 69-70.

2See Handbook on Treaties and Other International Agreements (February 25, 1985), Section 722 Appendix A.

3See 22 USC 2656d: Responsibilities of the Secretary of State in Appendix B.

4See the Case-Zablocki Act 1 USC 112b, subsection (c) in Appendix C.

5See the Case-Zablocki Act Regulations in Coordination, Reporting and Publication of International Agreements - 22 CFR Part 181 in Appendix D.

6This Supplementary Handbook is a guide to the measures and procedures to be followed and serves as a supplement to the Handbook on Treaties and Other International Agreements , generally known as the C-175 Handbook. In the event of a discrepancy between this Supplementary Handbook and the C-175 Handbook, the C-175 Handbook's instructions should prevail. As with the C-175 Handbook, however, this Supplementary Handbook is intended as no more than a guide to the measures and procedures to be followed. Deviation or derogation from the provisions of this Supplementary Handbook will not invalidate actions taken by officers nor affect the validity of negotiations engaged in or of agreements concluded.

7See Coordination, Reporting and Publication of International Agreements - 22 CFR Part 181.2(a)(1)-(5) in Appendix D.

[End.]

[This is a mobile copy of C. Chapter 1: Introduction]