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Tony

SOVEREIGN IMMUNITY POLICY

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Tony

UNCLASSIFIED
ROUTINE
R 071719Z JUL 16
FM CNO WASHINGTON DC
TO NAVADMIN
BT
UNCLAS

NAVADMIN 158/16

MSGID/GENADMIN/CNO WASHINGTON DC/N3N5/JUL//

SUBJ/SOVEREIGN IMMUNITY POLICY//

REF/A/MSG/CNO/182335Z DEC 02//
REF/B/MSG/CNO/101814Z NOV 05//
REF/C/DOC/UN/10DEC82//
REF/D/DOC/NWC/JUL07//
REF/E/MSG/STATE/152102Z OCT 85//
REF/F/DOC/SECNAV/14 SEP 90//
REF/G/DOC/OSD/28 MAY 14//
REF/H/DOC/BUMED/8MAR13//
REF/I/MSG/CNO/141910ZNOV05//
REF/J/MSG/MSC/272143Z MAY 03//
REF/K/MSG/MSC/081825Z AUG 06//
REF/L/MSG/MSC/201250Z NOV 09//
REF/M/DOC/GPO/8 APR 14//
REF/N/DOC/NATO/19 JUN 51//
NARR/REF A IS THE SOVEREIGN IMMUNITY POLICY.  REF B IS THE VESSEL SOVEREIGN 
IMMUNITY AND CREW LIST POLICY.  REF C IS THE UNITED NATIONS CONVENTION ON THE 
LAW OF THE SEA.  REF D IS THE COMMANDERS HANDBOOK ON THE LAW OF NAVAL 
OPERATIONS.  REF E THE STATE DEPT CABLE ON THE STATUS OF MILITARY SEALIFT 
COMMAND VESSELS.  REF F IS U.S. NAVY REGULATIONS.  REF G IS THE OSD MEMO 
PROMULGATING THE DOD-DOS-DHS STANDARD OPERATING PROCEDURES FOR COORDINATING 
FOREIGN MILITARY SHIP VISITS TO US PORTS.  REF H IS BUMEDINST 6210.4, SHIP 
SANITATION CERTIFICATE PROGRAM.  REF I IS THE ADDITIONAL CNO GUIDANCE ON 
SOVEREIGN IMMUNITY AND CREW LISTS.  REF J IS THE MSC SOVEREIGN IMMUNITY 
POLICY FOR TIME-CHARTERED VESSELS.  REF K IS SOVEREIGN IMMUNITY GUIDANCE FOR 
MSC MASTERS.  REF L IS MSC SUPPLEMENTAL SOVEREIGN IMMUNITY GUIDANCE.  REF M 
IS THE AMENDED 22 CFR SECTION 41.3. REF N IS THE NATO SOFA.//
POC/ P.J. GIBBONS/CAPT/OPNAV N3N5L/LOC: 2000 NAVY PENTAGON/
TEL 703-692-9373/NIPR:  PATRICK.J.GIBBONS1 (AT) NAVY.MIL/
SIPR:  PATRICK.GIBBONS (AT) NAVY.SMIL.MIL.//

RMKS/1.  This NAVADMIN updates U.S. Navy sovereign immunity policy and 
cancels refs A and B.  In addition to headquarters-level staffs, this message 
is of interest to Navy Region commanders, U.S. Naval Attaches, and ship 
commanding officers/masters.  Naval Component Commanders (NCCs) shall ensure 
adherence to the policies set forth in this message.

2.  In accordance with customary international law as reflected in ref C and 
as discussed in refs D and E, ships owned or operated by a State and used, 
for the time being, only on government non-commercial service are entitled to 
sovereign immunity.  Whether in internal, territorial, or international 
waters, such ships are immune from arrest and search, and exempt from foreign 
taxation and any foreign regulation requiring flying the flag of that foreign 
state while in its ports or territorial sea.  Foreign flags may be displayed 
to render honors in accordance with paragraphs 1276 1279 of ref F.  
Additionally, Commanding Officers/Masters are entitled to exclusive control 
over any persons onboard with respect to acts performed onboard, and the 
identity of any persons, weapons, stores, or other property on board is 
protected from disclosure.

3.  Warships.  The United States asserts the privilege of sovereign immunity 
for all USS vessels and small craft.  Assertion of sovereign immunity is a 
privilege of the United States government, and waiver is not within the 
discretion of the commanding officer.  Accordingly, providing a list of crew 
members, whether military or civilian, and passengers on board as a condition 
of entry into a port or to satisfy local immigration officials upon arrival 
is prohibited.  Paragraph 0828 of ref F prohibits the commanding officer from 
permitting a vessel under his or her command to be searched on any pretense 
whatsoever by a person representing a foreign state, and prohibits the 
commanding officer from permitting any of the personnel within the confines 
of the command to be removed from the command by any foreign representative.  
Ref G, agreed upon by the Departments of Defense, State and Homeland Security 
and endorsed by the National Security Council, provides the baseline 
treatment the US affords visiting foreign warships with the expectation of 
reciprocity.
    a.  Taxes and fees.  Port authorities or husbanding agents may attempt to 
assess fees on sovereign immune vessels and refer to them as port tax, port 
tariff, port marine pass, tolls, or similar nomenclature. Any revenue-
generating levy is a form of impermissible foreign tax on a sovereign immune 
vessel.  If requested to pay port fees, commanding officers should request an 
itemized list of all charges and explain that US Navy sovereign immune ships 
pay for all goods provided and services rendered, but cannot pay port fees.  
If port authorities or husbanding agents insist on payment of the levy, 
notify the NCC via the chain of command.
    b.  Health inspections. Ref F, paragraph 0859 requires the commanding 
officer to comply with all quarantine regulations and restrictions for the 
port within which a sovereign immune vessel is located, and to give 
authorized foreign officials all information required, subject to the 
constraints of paragraph 0828.  IAW ref H, NAVMED 6210/3 is the appropriate 
and only authorized means of complying with port authority requests for 
health information.  Under no circumstances will port authorities be given 
access to individual health records, and no health or sanitary inspection 
will be permitted.
    c.  Crew lists.  Most host nations do not attempt to require that 
visiting US warships provide a crew list as a condition of port entry.  For 
these nations, information about personnel on board the vessel should not be 
volunteered.  For host nations that request a visiting U.S. warship provide a 
list of personnel, NCCs shall adhere to the following practice:
        (1) US warships shall not provide a crew list to host nation 
authorities under any circumstances.  There is no difference in application 
for military versus non-military personnel.
        (2) Initial response.  In response to such requests, inform the host 
nation that United States policy exempts foreign sovereign immune vessels 
visiting the United States from the requirement to provide crew lists in 
accordance with the same sovereign immunity principles that US sovereign 
immune vessels claim.
        (3) Ref I provides additional guidance in the event host nation 
continues to press for more information.  Commanding officers shall consult 
with the responsible U.S. Embassy country team and notify their chain of 
command up to the NCC.  NCCs may provide guidance to commanders/commanding 
officers as delegated by CNO.  If necessary, ref E and G should be brought to 
the country teams attention as statements of US sovereign immunity and crew 
list policies.

4.  Naval auxiliaries.  As discussed in more detail in refs E, J, K, and L, 
MSC vessels owned by the US, such as USNS vessels, and U.S. flag vessels 
bareboat or time chartered by MSC are entitled to full privileges of 
sovereign immunity.  Like warships, whether in internal, territorial, or 
international waters, they are immune from arrest and search, and exempt from 
foreign taxation and any foreign regulation requiring flying the flag of that 
foreign state while in its ports or territorial sea. Additionally, they are 
entitled to exclusive control over any persons onboard with respect to acts 
performed onboard, and the identity of any persons, weapons, stores, or other 
property on board is protected.  The provisions of paragraphs 3.A. and 3.B. 
therefore apply equally.  Masters must refuse requests from foreign 
authorities for documents, physical evidence, interviews of personnel, 
statements, any request to board, examine, inspect, or search the vessel, and 
any request for the physical delivery of persons on the vessel to foreign 
authorities.  Detailed guidance to Masters on environmental incident 
responses is detailed in ref K.
    a.  Crew lists.  MSC vessels owned by the US and US flag vessels bareboat 
or time chartered by MSC shall not provide crew lists to foreign authorities.  
At the Masters discretion, these vessels may provide a shore party list, ie. 
a list of those crew members going ashore, to the host nation before a port 
visit if such a list is requested.  This shore party list may contain only 
the names and passport numbers of those personnel.  Other information, such 
as health record, job description, or employer shall not be provided.  
Masters should comply with applicable US-host nation agreements, such as 
status of forces agreements, that specify particular procedures for port 
visits to that country.
    b.  Voyage Charters.  Limited privileges of sovereign immunity are 
asserted for MSC US flag voyage charters.  As a matter of policy, the 
government ordinarily asserts only freedom from arrest and taxation for US 
flag vessels voyage chartered by MSC.  Masters of these vessels will be 
advised when the US intends to assert full sovereign immunity for them.  In 
the absence of such direction, these vessels may provide crew lists to 
foreign authorities as a condition of port entry or to satisfy local 
immigration officials upon arrival.  US-flag voyage chartered vessels 
generally follow the same procedures as commercial vessels when information 
is requested by foreign authorities, including environmental response 
information after an oil spill.  Foreign authorities may search these 
vessels, but Masters shall request that these authorities refrain from 
inspecting or searching US military cargo onboard.  Masters should request 
assistance from the chain of command, MSC headquarters, and the US Embassy 
when foreign authorities attempt to inspect or search US military cargo.
    c.  No sovereign immunity is asserted for foreign flag MSC chartered 
vessels.  These vessels may provide crew lists to foreign authorities.  They 
are in the same position as commercial vessels when dealing with government 
authorities, except that US government cargo on such MSC vessels is entitled 
to special consideration, protection, and treatment (including nonseizure by 
foreign nations).  Foreign authorities may search these vessels, but Masters 
should request these authorities refrain from inspecting or searching US 
military cargo on board. Masters should request assistance from the chain of 
command, MSC headquarters, and the US Embassy when foreign authorities 
attempt to inspect or search US military cargo.

5.  Foreign warships and naval auxiliaries visiting the United States are 
entitled to the same immunities.  While these immunities are covered by 
principles of international law, international agreements such as the NATO 
SOFA may also apply and are important to a complete understanding of the 
procedures and courtesies afforded to our visiting friends and allies.
Ref G implements refs M and N, and if followed ensures that foreign warship 
visits are properly coordinated among relevant Federal agencies to ensure 
recognition of sovereign immunity.  It is incumbent on Navy personnel to aid 
other Federal, State, and Local agencies in understanding sovereign immunity 
principles and to work with their personnel to ensure these principles are 
respected and adhered to.  It is also important to ensure this understanding 
is conveyed in advance of a port visit to prevent misunderstandings while a 
foreign ship is completing port arrival procedures.  By developing close 
relationships with Federal civil agencies such as Customs and Border 
Protection and Department of Agriculture, and State and local authorities, 
and by providing early and thorough coordination, installation and Fleet 
commanders can serve effective advance planning, intermediary, and liaison 
functions between visiting foreign warships and US civil authorities.  Doing 
so will ensure that visits by sovereign immune vessels from all nations are 
conducted IAW international law and with the same courtesy and efficiency 
that we expect when US Navy ships visit foreign ports.

6.  Released by Vice Admiral J. C. Aquilino, Deputy Chief of Naval Operations 
for Operations, Plans and Strategy (N3/N5).

BT
#0001
NNNN
UNCLASSIFIED//

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