TREATIES AND OTHER INTERNATIONAL ACTS SERIES 02-117

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DEFENSE

Agreement between the

UNITED STATES OF AMERICA

and INDIA

Agreement signed at Washington January 17, 2002
 NOTE BY THE DEPARTMENT OF STATE

 Pursuant to Public Law 89—497, approved July 8, 1966

(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued

under the authority of the Secretary of State shall be competent

evidence . . . of the treaties, international agreements other than

treaties, and proclamations by the President of such treaties and

international agreements other than treaties, as the case may be, 

therein contained, in all the courts of law and equity and of maritime

jurisdiction, and in all the tribunals and public offices of the

United States, and of the several States, without any further proof

or authentication thereof.”
INDIA

Defense

Agreement signed at Washington January 17, 2002; 

 Entered into force January 17, 2002.
AGREEMENT BETWEEN

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

AND

THE GOVERNMENT OF THE REPUBLIC OF INDIA

CONCERNING SECURITY MEASURES

FOR THE PROTECTION OF

CLASSIFIED MILITARY INFORMATION

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PREAMBLE

The Government of the United States of America and the Government of

the Republic of India, hereinafter referred to as "the Parties," and separately as

"a Party;"

In furtherance of mutual cooperation to ensure the protection of classified

military information;

Have agreed as follows:

ARTICLE 1

Classified military information provided directly or indirectly by one Party to

the other Party, or to an officer or other representative of the other Party, shall be

protected according to the terms set forth herein and in accordance with the laws

and regulations of the country of the recipient Party.

ARTICLE 2

Each Party shall notify the other of any changes to its laws and regulations

that would affect the protection of classified military information under this

Agreement. In such case, the Parties shall consult, as provided for in Article 22,

to consider possible amendments to this Agreement. In the interim, classified

military information shall continue to be protected as described in this

Agreement, unless otherwise agreed in writing by the releasing Party.

ARTICLE 3

For the purpose of this Agreement, classified military information is

information that is generated by or for the Department of Defense of the United

States of America or the Ministry of Defense of the Republic of India, or that is

under their jurisdiction or control, and which requires protection in the interests

of national security of the Party by or for whom the information was generated.

For the Government of the United States of America, classified military

information is marked CONFIDENTIAL, SECRET, or TOP SECRET. For the

Government of the Republic of India, it is marked RESTRICTED,

CONFIDENTIAL, SECRET, or TOP SECRET. The information may be in

oral, visual, electronic, magnetic or documentary form, or in the form of

equipment or technology, including technical specifications and models.

Equivalent classifications are as follows:

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United States of America

TOP SECRET

SECRET

CONFIDENTIAL

CONFIDENTIAL (MODIFIED

HANDLING AUTHORIZED)

India

TOP SECRET

SECRET

CONFIDENTIAL

RESTRICTED

ARTICLE 4

Supplemental annexes under this Agreement may be concluded by the

designated implementing agencies. For the Government of the United States of

America, the implementing agency shall be the Department of Defense. For the

Government of the Republic of India, the implementing agency shall be the

Ministry of Defense.

ARTICLE 5

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No individual shall be entitled to access to classified military information

solely by virtue of rank, appointment, or security clearance. Access to the

information shall be granted only to those individuals whose official duties require

such access and who have been granted a personnel security clearance in

accordance with the prescribed standards of the recipient Party. The Parties shall

ensure that:

A. The recipient Party shall not release the information to a

government, person, firm, institution, organization or other entity of a third

country without the prior written approval of the releasing Party;

B. The recipient Party shall afford the information a degree of

protection equivalent to that afforded by the releasing Party;

C. The recipient Party shall not use the information for any other

purpose than that for which it was provided without the prior written approval of

the releasing Party;

D. The recipient Party shall respect private rights, such as patents,

copyrights, or trade secrets, which are involved in the information; and

E. Each facility or establishment that handles classified military

information shall maintain a registry of the security clearance of individuals at

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the facility or establishment who are authorized to have access to such

information.

ARTICLE 6

The determination on the granting of a personnel security clearance to an

individual shall be consistent with the interests of national security and shall be

based upon all available information indicating that the individual is of

unquestioned loyalty, integrity, trustworthiness, and excellent character, and of

such habits and associates as to cast no doubt upon his or her discretion or good

judgment in the handling of classified military information.

ARTICLE 7

An appropriate investigation, in sufficient detail to provide assurance that

the above criteria have been met, shall be conducted by the Parties with respect

to any individual to be granted access to classified military information covered

by this Agreement.

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Before a representative of a Party releases classified military information

to an officer or representative of the other Party, the receiving Party shall

provide to the releasing Party an assurance that the officer or representative

possesses the necessary level of security clearance and requires access for

official purposes, and that the information will be protected by the receiving

Party in an equivalent manner as required by the releasing Party.

ARTICLE 9

Authorizations for visits by representatives of one Party to facilities and

establishments of the other Party, where access to classified military

information is required, shall be limited to those necessary for furtherance of

official cooperative defense activities between the Parties. Authorization to

visit a facility or establishment shall be granted only by the Party in whose

territory the facility or establishment is located or by government officials

designated by that Party. The visited Party shall be responsible for advising

the facility or establishment of the proposed visit, the topic, scope and highest

level of classified military information that may be furnished to the visitor.

Requests for visits by representatives of the Parties shall be submitted through

the United States Defense Attaché Office in New Delhi, in the case of United

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States' visitors, and through the Indian Defense Attaché Office in

Washington, D.C., in the case of Indian visitors.

ARTICLE 10

Each Party shall be responsible for safeguarding all classified military

information of the other Party while the information is in transit or storage

within its territory.

ARTICLE 11

Each Party shall be responsible for the security of all government and

private facilities and establishments where the classified military information

of the other Party is kept and shall assure that for each such facility or

establishment qualified individuals are appointed who shall have the

responsibility and authority for the control and protection of the information.

ARTICLE 12

The classified military information shall be stored in a manner that assures

access only by those individuals who have been authorized access pursuant to

Articles 5, 6, 7, and 8 of this Agreement.

ARTICLE 13

Classified military information shall be transmitted between the Parties

through government-to-government channels. The minimum requirements for

the security of the information during transmission shall be as follows:

A. Documents

(1) Documents or other media containing classified military

information shall be transmitted in double, sealed envelopes, the innermost

envelope bearing only the classification of the documents or other media and

the organizational address of the intended recipient, the outer envelope bearing

the organizational address of the recipient, the organizational address of the

sender, and the registry number, if applicable.

(2) No indication of the classification of the enclosed documents or

other media shall be made on the outer envelope. The sealed envelope shall

then be transmitted according to the official procedures of the releasing Party.

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(3) Receipts shall be prepared for packages containing classified

documents or other media that are transmitted between the Parties, and a

receipt for the enclosed documents or media shall be signed by the final

recipient and returned to the sender.

B. Classified Equipment

(1) Classified equipment shall be transported in sealed, covered

vehicles, or be securely packaged or protected in order to prevent identification

of its details, and kept under continuous control to prevent access by

unauthorized persons.

(2) Classified equipment that must be stored temporarily awaiting

shipment shall be placed in a protected storage area. The area shall be protected

by intrusion-detection equipment or guards with security clearances who shall

maintain continuous surveillance of the storage area. Only authorized personnel

with the requisite security clearance shall have access to the storage area.

(3) Receipts shall be obtained on every occasion when classified

equipment changes hands en route. •

(4) Receipts shall be signed by the final recipient and returned to the

sender.

C. Electronic Transmissions Classified military information

transmitted by electronic means shall be encrypted.

ARTICLE 14

Accountability and control procedures shall be established to manage the

dissemination of and access to classified military information.

ARTICLE 15

Each Party shall stamp or mark the name of the originating government on

all classified military information received from the other Party. The

information shall be marked with a national security classification marking of

the recipient Party that will afford a degree of protection equivalent to that

afforded to it by the releasing Party.

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ARTICLE 16

Classified documents and other media containing classified military

information shall be destroyed by burning, shredding, pulping, or other means

preventing reconstruction of the classified military information contained

therein.

ARTICLE 17

Classified equipment shall be destroyed beyond recognition so as to

preclude reconstruction of the classified military information in whole or in

part.

ARTICLE 18

When classified documents or other media are reproduced, all original

security markings thereon shall also be reproduced or marked on each copy.

Such reproduced documents or media shall be placed under the same controls

as the original document or media. The number of copies shall be limited to

that required for official purposes.

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ARTICLE 19

All translations of classified military information shall be made by

individuals with security clearances pursuant to Articles 5, 6, 7, and 8. The

number of copies shall be kept to a minimum and the distribution thereof shall

be controlled. Such translations shall bear appropriate security classification

markings and a suitable notation in the language into which it is translated,

indicating that the document or media contains classified military information

of the releasing Party.

ARTICLE 20

Prior to the release to a contractor or prospective contractor, including

Indian governmental entities such as Defence Public Undertakings and

Government Production Agencies, of any classified military information

received from the other Party, the recipient Party shall:

A. Ensure that such contractor or prospective contractor, including Defence

Public Undertakings and Government Production Agencies, and the contractor's

facility have the capability to protect the information;

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B. Grant to the facility an appropriate facility security clearance;

C. Grant appropriate personnel security clearances for all individuals

whose duties require access to the information;

D. Ensure that all individuals having access to the information are informed

of their responsibilities to protect the information in accordance with applicable

laws and regulations;

E. Carry out periodic security inspections of cleared facilities to ensure

that the information is protected as required herein; and

F. Ensure that access to the information is limited to those persons who

have a need to know for official purposes.

ARTICLE 21

The releasing Party shall be informed immediately of all losses or

compromises, as well as possible losses or compromises, of its classified

military information, and the recipient Party shall initiate an investigation to

determine the circumstances. The results of the investigation and information

regarding measures taken to prevent recurrence shall be forwarded to the

releasing Party by the Party that conducts the investigation.

ARTICLE 22

Implementation of the foregoing security requirements can be advanced

through reciprocal visits by security personnel of the Parties for the observance

of systems and regulations applied to the protection of classified military

information. Accordingly, security representatives of each Party, after prior

consultation, shall be permitted to visit the other Party, to discuss and view

firsthand the implementing procedures of the other Party in the interest of

achieving reasonable comparability of the security systems. Each Party shall

assist the security representatives in determining whether classified military

information provided by the other Party is being adequately protected.

ARTICLE 23

A. This Agreement shall enter into force on the date of signature.

B. Amendments to the present Agreement shall be made by mutual consent

of the Parties.

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C. This Agreement shall remain in force for a period of five years and

shall be automatically extended annually thereafter, unless either Party notifies

the other in writing through diplomatic channels, ninety days in advance, of its

intention to terminate the Agreement.

D. Notwithstanding the termination of this Agreement, all classified

military information provided pursuant to this Agreement shall continue to be

protected in accordance with the provisions set forth herein.

IN WITNESS WHEREOF the undersigned, being duly authorized by their

respective Governments, have signed this Agreement.

DONE at Washington, D.C, in duplicate, this 17 th day of January 2002.

FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF

THE UNITED STATES OF AMERICA: THE REPUBLIC OF INDIA:

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