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//