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Exchange of Notes constituting an Agreement between the Government of Canada and the Government of the United States of America to facilitate co-operation between military services of the two countries [1994] CATSer 14 (19 August 1994)

E101059 - CTS 1994 No. 34

EXCHANGE OF NOTES CONSTITUTING AN AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO FACILITATE CO-OPERATION BETWEEN MILITARY SERVICES OF THE TWO COUNTRIES

I

The Acting Secretary of State of the United States of America to the Ambassador of Canada

March 4, 1994

His Excellency Raymond Chrétien,
Ambassador of Canada

Excellency:

I have the honor of referring to recent discussions which have taken place between officials of the Government of the United States of America and of the Government of Canada (hereinafter referred to as the Parties) concerning the establishment of certain mutual defense commitments between the two Parties. These discussions reflect the mutual desire of the Parties, in the exercise of their national and mutual defense responsibilities within the North Atlantic Treaty Organization for the security of the United States and Canada, to facilitate the process of cooperation in defense matters and to ensure that the respective interests of the Parties are fairly respected under international law.

I have, further, the honor to refer to the Agreement between the parties to the North Atlantic Treaty regarding the status of their forces (NATO SOFA) signed at London on June 19, 1951, which, inter alia, defined the terms "force" and "civilian component" and established procedures for resolution of certain claims arising from damage to property and death or injury to persons caused in connection with the operation of the North Atlantic Treaty. I have, still further, the honor to refer to the NATO Agreement on the Communication of Technical Information for Defense Purposes signed at Brussels on October 19, 1970, which, inter alia, provides that Recipient States who receive in confidence proprietary technical information for defense purposes are responsible for safeguarding it and that the owners of proprietary technical information which has been communicated for defense purposes who are damaged through the unauthorized disclosure or use of the information by a Recipient State or by someone to whom this Recipient has disclosed the information must be compensated by the Recipient.

In consideration of the above, I have the honor to propose that whenever our national defense organizations, within the limits of defense responsibilities and authorities as established by each Party, undertake to cooperate in writing, such arrangements shall be subject to this Agreement between the Parties concerning certain mutual defense commitments as to the following matters:

1. (a) As regards issues of liability, the provisions of the NATO SOFA apply pursuant to their terms.

(b) For issues of liability where the NATO SOFA does not apply, the following shall apply:

(i) Each Party waives all claims against the other for injury or death to its personnel, and for damage to its property arising from the performance of official duties.

(ii) In the event of claims from third parties for injury or death to persons or damage to property arising from the performance of official duties, where a negotiated resolution with the third party cannot be achieved, the Parties shall share in accordance with the proportions stated in the relevant arrangement, any costs adjudicated by a court or administrative tribunal board or other entity of competent jurisdiction. Such claims shall be adjudicated by the most appropriate Government as agreed.

(iii) As to i. and ii. above, if the Parties agree that the damage, injury or death is caused by reckless acts, reckless omission, willful misconduct or gross negligence, the costs of any liability will be borne entirely by the Party of the culpable person.

(iv) Claims arising under any contract implementing a written arrangement shall be resolved in accordance with the provisions of the contract and shall be settled between the national defense organizations in accordance with their written arrangement.

2. The following provisions shall apply with respect to rights to own and use information provided or developed under a written arrangement for research, development, test, evaluation or production:

(i) Information generated outside of a written arrangement that is provided by a national defense organization, to the other national defense organization in the implementation of that written arrangement, shall be used only for the purposes set forth in the written arrangement.

(ii) Information generated by or for a national defense organization in performance of a written arrangement shall be used by or for the other national defense organization only for the purposes set out in that written arrangement.

(iii) Information jointly generated by or for the national defense organizations shall be used by or for each organization only for the purposes set out in the written arrangement.

(iv) Title to information generated by or for the national defense organizations shall be allocated, as necessary, solely or jointly to the Governments and their contractors as set out in written arrangements between the national defense organizations.

3. Neither Party shall sell, transfer title to, disclose, or transfer possession of (i) information generated outside of a written arrangement and provided by or for the other's national defense organization, (ii) information generated in the performance of a written arrangement which is jointly generated or which may be specified in the written arrangement, or (iii) material provided by or for the other's national defense organization, jointly acquired, or which may be specified in a written arrangement, to any third party without the prior written consent of the other's national defense organization.

4. As regards the lease or loan of material or equipment, each Party shall (i) use, for the purposes set forth in written arrangements, maintain and return the material or equipment in as good condition as when received, reasonable wear and tear excepted (except expendables and items authorized for testing to destruction) or pay the cost of any damage or loss, and (ii) fulfill such other terms and conditions, as may be set forth in the written arrangement.

5. As regards the provision of logistics support, each party shall provide, upon request and subject to availability, food, water, billeting, transportation, petroleum, oil, lubricants, clothing, communication services, medical services, ammunition, storage services, training services, contracting and related services, repair and maintenance services, spare parts and components, access to and use of facilities, base operations support (including construction incident thereto), airfield and port services, as reflected in written arrangements between our national defense organizations. Payment, if required, for the provision of such logistics support, shall be calculated upon such terms as are most favorable under the national laws of the providing Party.

In order for this Agreement to apply to written arrangements between our national defense organizations, it must be explicitly invoked by or for that arrangement.

Any dispute regarding the interpretation or application of this Agreement shall be resolved by consultation between the Parties and shall not be referred to a national or international tribunal or third party for resolution or settlement.

Any dispute regarding the interpretation or implementation of any written arrangements so concluded by our national defense organizations shall be resolved by consultation between the signatories to such arrangements and shall not be referred to a national or international tribunal or other third party for resolution or settlement.

If the foregoing is acceptable to your Government, I have the honor to propose that this Note and your Note in reply, to that effect, which is authentic in both the English and French languages, shall constitute an Agreement between our two Governments which shall enter into force on the date of your reply. This Agreement shall remain in force until six months after the date of the receipt of notice of termination by either Government. I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.

Mary Ann Peters

For the Acting Secretary of State

II

The Secretary of State for External Affairs of Canada to the Secretary of State of the United States of America

THE SECRETARY OF STATE FOR EXTERNAL AFFAIRS

August 19, 1994

The Honourable Warren Christopher
Secretary of State, United States of America

Excellency:

I have the honor to refer to the Acting Secretary of State's Note of March 4, 1994, to His Excellency Raymond Chrétien, Ambassador of Canada, which reads as follows:

(See Note from the United States of America of March 4, 1994)

I have the honor to inform your Excellency that the above proposals are acceptable to the Government of Canada and that the Acting Secretary of State's Note, and this Note in reply, which is equally authentic in the English and French languages, shall constitute an Agreement between our two Governments which shall enter into force on this date. I have the honor, further, to accept the proposal that this Agreement shall remain in force until six months after the date of the receipt of notice of termination by either government.

Please accept, Excellency, the renewed assurances of my highest consideration.

André Ouellet

Secretary of State for External Affairs