VZCZCXRO1063
PP RUEHAO RUEHCD RUEHGA RUEHGD RUEHGR RUEHHA RUEHHO RUEHMC RUEHNG
RUEHNL RUEHQU RUEHRD RUEHRG RUEHRS RUEHTM RUEHVC
DE RUEHBR #1365/01 1871851
ZNR UUUUU ZZH
P 061851Z JUL 06
FM AMEMBASSY BRASILIA
TO RUEHC/SECSTATE WASHDC PRIORITY 6010
INFO RUEHRI/AMCONSUL RIO DE JANEIRO 2426
RUEHSO/AMCONSUL SAO PAULO 7388
RUEHRG/AMCONSUL RECIFE 5085
RUEHWH/WESTERN HEMISPHERIC AFFAIRS DIPL POSTS
RHMFIUU/JOINT STAFF WASHINGTON DC
RUEKJCS/SECDEF WASHINGTON DC
RHMFISS/CDR USSOUTHCOM MIAMI FL

UNCLAS SECTION 01 OF 02 BRASILIA 001365 
 
SIPDIS 
 
PLEASE PASS TO BPOPP WHA/BSC 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: MARR MOPS MASS KTIA US BR
SUBJECT: BRAZIL REJECTS SOFA REQUEST FOR BRAZILIAN AIR FORCE ANNUAL 
TRANSPORT AVIATION MEETING 
 
REF: A) STATE 100160 
 B) 05 BRASILIA 2538 
 
BRASILIA 00001365  001.2 OF 002 
 
 
¶1. Poloff delivered reftel's talking points and draft dip notes, 
July 5, to Virginia Toniatti, the MFA's General Coordinator Against 
Transnational Crime (COCIT).  In response to the draft note and 
Poloff's assertion that the USG would like to conclude a long-term 
SOFA agreement with Brazil, Toniatti declared that COCIT had already 
answered and denied similar requests in previous years, most 
recently in July and September of 2005.  She added that there had 
been no alteration in the GoB's legal position or in the relations 
between the U.S. and Brazil that would modify the Brazilian 
response.  Although the GoB could not exchange notes utilizing the 
proposed language, COCIT did agree to afford U.S. military personnel 
the same privileges as in previous exercises.  If necessary, the GoB 
will transmit a new note, similar to diplomatic note 79 from 
September 2005, confirming these protections. 
 
¶2. Text of Dip Note 79 (ref B) 
 
COCIT / DEUC / 079 / PEXT-BRAS-EUA - September 9, 2005 
a. The Ministry of Foreign Affairs presents its compliments to the 
Embassy of the United States of America and has the honor to refer 
to Dip Note #250 sent by the U.S. Embassy on 26 July 2005, regarding 
the concession of additional privileges and immunities to U.S 
military personnel participating in joint military exercises in 
Brazilian territory.  The Ministry regrets not to be in agreement 
with all the terms of the referred note and reminds the Embassy that 
the subject has been under discussion, via exchange of 
correspondence with the Embassy, since September 2002, and the last 
manifestation from the Brazilian Government in this respect was 
stated in Dip Note #050, dated 4 July 2005. 
 
b. The Ministry is not in the position to provide additional 
guarantees to the status of privileged to U.S. military personnel. 
The GOB understanding is that the concession of additional 
immunities of jurisdiction to U.S. personnel involved in joint 
exercises in Brazil is subject to the terms established by the 1961 
Vienna Convention on Diplomatic Relations, and based on the 
principle of juridical equality of states, and on the constitutional 
principle of isonomy among nationals and foreigners. 
 
c. As stated in paragraph 4 of the referred note #50, the Brazilian 
Law accepts the rules of International Law that establishes that 
foreign military vessels and aircrafts enjoy extraterritoriality. 
In this sense, crimes committed aboard these vessels and aircrafts 
are not subject to the Brazilian legislation.  In the same way, 
crimes committed in Brazilian territory by foreign military 
personnel, while fulfilling their duties, are not subject to 
Brazilian jurisdiction, but to the jurisdiction of the perpetrator's 
country of nationality.  Brazilian courts, however, have 
jurisdiction over crimes committed by foreign military personnel, in 
Brazilian territory, when they are not in the fulfillment of the 
duties related to joint military exercises with the Brazilian Armed 
Forces.  In this last case, Brazilian courts would act independently 
of any consultation between the two governments, based on 
constitutional principles that establish the separation of powers in 
the Republic. 
 
d. Under these conditions, the Ministry stresses to the Embassy 
that, while organizing joint military exercises in the Brazilian 
territory, the officials involved must take these facts referred 
above into consideration. 
 
¶3. Text of Dip Note 50 referred to in paragraph 2.a 
 
COCIT / DEUC / SPD / 050 / PEXT-BRAS-EUA - July 4, 2005 
a. The Ministry of Foreign Relations compliments the Embassy of the 
United States of America and has the honor to refer to Diplomatic 
Note number 181 from the U.S. Embassy, dated June 13, 2005, about 
the concession of privileges and additional immunities, for the 
designation of U.S. militaries to participate in military exercises 
together with the Brazilian Forces in Brazil.  The Ministry agrees 
that the issue has been object of exchange of notes with the U.S. 
Embassy since September, 2002, and that the position of the 
Brazilian Government was transmitted to the U.S. Government on notes 
number 91 (10-04-2002), 08 (02-04-2005) and 15 (03-08-2005). 
 
b. The Brazilian Government has no means to assure the U.S. 
militaries any additional guarantees as a status of privilege, as an 
example of the personnel condition as temporary diplomatic mission, 
based in the U.S. Liaison Office in Brazil.  The concession of 
equivalent diplomatic status granted to administrative and technical 
 
BRASILIA 00001365  002.2 OF 002 
 
 
personnel to the Embassy to U.S. militaries involved in joint 
exercises with Brazil, shall necessarily fall into what the 1961 
Vienna Convention states about Diplomatic Relations (noted in 
articles 29, 31 and 37) 
 
c. The Ministry considers that the terms the request was made would 
hinder that such concession be in accordance with the jurisdiction 
of National courts to judge as crimes of U.S. militaries in Brazil, 
according to the Brazilian Penal Law.  This would also go against 
the Principle of Equal Jurisdiction of States, the Constitutional 
Principle of Isonomy between Nationals and Foreigners and the 
Brazilian Practice in similar cases. 
 
d. The Ministry has reiterated to the Embassy that, up to this 
moment, there has not been any agreements between Governments of 
both countries regarding this matter and that the Brazilian Law 
agrees with the International Law, which foreign military ships and 
aircrafts avail of extraterritoliality.  Having mentioned this, 
crimes committed on such ships and aircrafts are not object to the 
Brazilian Law.  In addition, crimes committed on the Brazilian 
grounds by foreign military agents while in their duties are not 
submitted to the Brazilian jurisdiction, but the State of the 
incumbent's nationality.  The Brazilian jurisdiction acts, however, 
in cases of crimes committed by foreign militaries if they are not 
in duties related to military exercises with the Brazilian 
Authorities. 
 
e. The Ministry reminds the Embassy that the Brazilian and the U.S. 
Army have been working on joint military exercises on Brazilian 
grounds in a smooth and uninterrupted way for almost half century. 
The Brazilian Government has made sure that basic conditions to the 
full development of their activities be guaranteed to the 
participants of such exercises.  The Ministry notes the existence of 
the joint exercise "PKO South" on Brazilian soil and the 
cancellation of the "Patriot Angel" exercise in common agreement 
between Air Force authorities of both countries. 
 
f. The Ministry transmits to the Embassy that the Brazilian 
Government expects that The Brazilian and the U.S. Forces continue 
with their joint military exercises, such as the upcoming edition of 
UNITAS.  To stress so, the Ministry reiterates the position of the 
Brazilian Government that such exercises be developed in the same 
terms as previous exercises regarding the immunity of jurisdiction 
to foreign militaries (terms previously mentioned in paragraph 4). 
Brazil does not consider that any fact or initiative have occurred 
in order to justify changes in the relations between Brazilian and 
U.S. militaries or any cancellation of exercises that have been 
developed for years in an excellent prosperous atmosphere. 
 
g. Finally, The Ministry expresses to the Embassy that 
communications regarding this matter, in order to be considered 
official, shall be directed to Itamaraty, the authority with proper 
responsibilities, and the body that handles grants of privileges and 
immunities to foreign officers who visit the country. 
 
WILLIAMSON