Chapter One

Introduction: Agreeing to Cooperate

The U.S. government negotiates and signs formal and informal agreements with its counterparts to sponsor cooperation in science and technology. Although science and technology are widely acknowledged to have international scope, national governments often have political goals or mission requirements, such as sharing scientific data or cooperating on the construction of space equipment, that motivate establishing a formal relationship. The science and technology agreements, sometimes called International Science and Technology Agreements (ISTAs), range from legally binding treaties approved by Congress to letters of correspondence with no legally binding authority.

The formal agreements take many administrative forms and are signed at various levels of government, from the Executive Office of the President down to the program and project levels within a specific agency. The most formal agreements, usually referred to as "framework" or "umbrella" agreements, are generally negotiated at the executive levels of government and carry the names of the countries involved, such as "The U.S.-Japan Science and Technology Agreement." The framework agreements often include references to broad areas of science, such as earth science or health research, in which cooperation between the two nations is desirable and encouraged.[1]

In addition, the framework agreements usually include an "Intellectual Property Rights Annex and Guidelines," which delineates how intellectual property will be handled in case activities carried on under ISTAs result in patents or other forms of intellectual property.

The Case-Zablocki Act of 1977 requires that the Secretary of State be consulted before any international agreement is signed or concluded on behalf of the United States (1 USC 112B). However, the guidelines as to when an agreement rises to this level of formality are purposely vague, as described in the United States Code (USC):

Minor or trivial undertakings, even if couched in legal language or form, are not considered international agreements within the meaning of the Act or of 1 USC 112a. In deciding what level of significance must be reached before a particular agreement becomes an international agreement, the entire context of the transaction and the expectations and intent of the parties must be taken into account. It is often a matter of degree. . . . It remains a matter of judgment based on all of the circumstances of the transactions. Examples of arrangements that may constitute international agreements are agreements that (I) Are of political significance; (ii) involve substantial grants of funds or loans . . . ; (iii) . . .constitute a commitment of funds . . . ; (iv) involve continuing cooperation on a particular mission. . . . However, individual research grants and contracts do not ordinarily constitute international agreements. [2 CFR Ch. I Sect. 181.2(a)(2)]

The extent to which different agencies of government may enter into international agreements and cooperate internationally is also detailed in legislation. The Department of Defense (DoD), Department of Energy (DOE), and the National Aeronautics and Space Administration (NASA) have the broadest authority to enter into and conduct international cooperative science and technology activities.[2]

International agreements involving more than one agency of government, or which constitute a significant commitment of U.S. government resources, are circulated by the Department of State among relevant government agencies for approval according to procedures laid out in the Foreign Affairs Manual, Section 720. The process is referred to as "Circular 175." Once approved by various government agencies, the resulting agreement is recorded by the Department of State, and, in the past at least, has been listed in the State Department's "Title V" report.[3]

When determining whether to use the Circular 175 process, agencies are instructed to consider the following factors (Foreign Affairs Manual, 11 Fam 721.3):

  1. The extent to which the agreement involves commitments or risks affecting the nation as a whole;

  2. Whether the agreement is intended to affect State laws;

  3. Whether the agreement can be given effect without the enactment of subsequent legislation by Congress;

  4. Past U.S. practice as to similar agreements;

  5. The preference of the Congress as to a particular type of agreement;

  1. The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and

  2. The general international practice as to similar agreements.

Below the level of formal intergovernmental ISTAs, a range of vehicles exists for establishing the details of cooperation. Memoranda of understanding (MOUs) or memoranda of agreement (MOAs) are less formal than "framework" agreements (they are not treaty-level agreements, for example), but they are considered binding international agreements. These agreements are negotiated at both the executive and agency levels of government and may be signed with a corresponding government official or with a private entity. Often, these agreements are negotiated to cover a specific activity or set of activities that involve the commitment of funds or the sharing of equipment, such as space satellites.

Other, less formal agreements are negotiated and signed at the agency level. These can include agreements called, variously, agreement of cooperation, collaborative agreement, data exchange agreement, letter of agreement, or project agreement. During a negotiation phase, the parties may sign a preagreement or an interim agreement to establish guidelines for an activity that needs to move forward before a formal agreement is in place. These agreements usually cover activities being sponsored and conducted by the agencies themselves but can cover the activities of government contractors or grantees.

Many government-sponsored international cooperative efforts in science and technology go on without the benefit of or reference to a formal agreement, particularly when the activity is informal or when the agent conducting the research is outside of government, such as an academic researcher working on a government grant. In a previous RAND report, we identified that, in FY95 alone, the U.S. government spent at least $3.3 billion on international cooperation in research and development.[4] It is not clear to what extent these activities are covered by formal agreements. In theory, where a framework agreement is in place and unless otherwise negated, all science and technology activities with this counterpart take place under the formal agreement. There is no requirement, however, that these projects "register" or otherwise reference existing ISTAs when establishing operations.

Purpose of This Project

In an effort to identify the extent to which agreements covering remote-sensing cooperation are signed at different levels of government, a survey was undertaken to determine the extent and nature of U.S. agreements signed to enable these activities. The subject of remote sensing and earth observation is becoming increasingly important as the United States seeks to cooperate internationally in environmental science and monitoring activities. International cooperation in remote sensing and earth observation allows nations to share the costs and benefits of expensive equipment and encourages the exchange of important weather data, as well as earth science and biological data. As global climate change and other environmental monitoring issues grow in importance, finding ways to use resources optimally and to share data collected by different instruments in different parts of the world will become increasingly important. Understanding the extent to which the U.S. already cooperates with others, what mechanisms are in place to enable additional cooperation, and where we may need to establish new relationships is key to moving ahead on this front.

Methodology

To provide a baseline for U.S. government-sponsored international cooperation in remote sensing and earth observation, this report catalogs and describes the international cooperative agreements currently in place to govern this activity. From various sources within the U.S. government we collected data that detailed agreements in force to support cooperative activities. (A full list of agencies contacted is provided in the appendix.) With these data, we were able to identify the government agencies most active in international cooperation in remote sensing as input for the second part of this project, which involved contacting government agency officials to obtain additional information about how and why these agreements are entered into, and the extent to which government agency officials coordinate with one another when pursuing international cooperation.

Scope

Agreements-in-force were collected with an emphasis on identifying activities related to the use of remote-sensing equipment to provide data on earth observation and global climate change. Accordingly, some agreements that were collected as part of the initial sweep were eliminated upon examination, particularly agreements relating to

After eliminating these, the list of agreements included remote sensing and other agreements that, although they were not directly involved in remote-sensing activities, either supported remote-sensing satellites or used data collected from remote-sensing sources. Thus, such activities as balloon-to-satellite calibration are included in the data set we collected, as are mapping and charting activities when it appears that remotely sensed data will be used to create maps and charts. Data were not collected on the actual project-based activities being sponsored by the U.S. government; we only included agreements to conduct activity, regardless of whether the activity is actually being conducted.

Organization of This Report

Chapter Two presents an overview analyzing the list of remote-sensing agreements identified for this project. This includes a description of the type of activities being sponsored, the agencies sponsoring activity, the country with whom agencies have agreed to cooperation, and the hardware in place to support these activities. Chapter Three provides the results of the informal survey conducted to determine the reasons agencies enter into these agreements and the extent to which agencies coordinate with each other when doing so. Chapter Four outlines our recommendations. Finally, the appendix contains the full list of agreements identified during the course of this study.

[1] In 1996, the United States had framework agreements in place with 35 nations. These agreements are listed on the Department of State web site, www.state.gov/www/global/oes/science.

[2] Caroline S. Wagner, "International Cooperation in Research and Development: An Inventory of U.S. Government Spending and a Framework for Measuring Benefits," Santa Monica, Calif.: RAND, MR-900-OSTP, 1997. Appendix A contains a listing of legislative authority for space and technology agencies.

[3] The 1995 Title V is available at www.ta.doc.gov/bilat. The Title V reports will no longer be compiled by the Department of State in this format.

[4] Caroline S. Wagner, "International Cooperation in Research and Development: An Inventory of U.S. Government Spending and a Framework for Measuring Benefits," Santa Monica, Calif.: RAND, MR-900-OSTP, 1997.

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