Germany directs attention to questions surrounding non-legally binding international agreements

Published: 21 May 2021 Author: Stefan Talmon

Non-legally binding international agreements – that is, instruments that contain political or moral, rather than legal, commitments – have gained increasing importance in State practice in recent years. In many areas of international relations, where in former times States most likely would have concluded a treaty, they are now adopting non-legally binding instruments. Thus, some pressing questions of international law have more recently been dealt with in non-binding instruments such as the Global Compact for Safe, Orderly and Regular Migration, the Joint Comprehensive Plan of Action (JCPoA) for the containment of Iran’s nuclear programme, and the Declaration Against Arbitrary Detentions in State-to-State Relations. Such non-legally binding agreements present a number of advantages for governments compared to treaties: they usually are easier to agree on because of their non-binding nature, they allow negotiators to gloss over political or legal differences more easily as there is no danger of them being subjected to legal scrutiny or dispute settlement mechanisms, they are not subject to parliamentary examination or approval, and they allow for flexibility with regard to form and to the process of their adoption. On the other hand, such instruments may raise false expectations concerning the settlement of disputes or the solution of pressing problems of the international community, create uncertainty in international relations, and give rise to disputes over their legal status as a treaty or non-legally binding agreement. Unlike treaties, which are subject to the customary law rules embodied in the Vienna Conventions on the Law of Treaties, non-legally binding agreements fall outside the realm of international law – their conclusion, amendment, termination, and effects are not governed by international legal rules. They are not subject to the principle of pacta sunt servanda and their breach does not entail international responsibility of States or international organisations. Non-compliance with such non-binding agreements may give rise to political sanctions and cause reputational damage, but there is no room for countermeasures.

On 26 March 2021, Germany organised an expert workshop of the Council of Europe’s Committee of Legal Advisers on Public International Law (CAHDI) on “Non-legally Binding Agreements in International Law” in order to address the questions of the distinction between treaties and non-legally binding agreements and their potential indirect legal effects. In his opening remarks, the Legal Adviser to the Federal Foreign Office, Christophe Eick, set out the German practice in the area of non-legally binding agreements. He first noted the ever-increasing relevance of non-binding agreements in Germany’s international practice, stating:

“Every month, Germany signs about 15 non-legally binding agreements with partners around the world. These agreements cover a wide range of topics, will diverge in the degree of detail and are signed with a multitude of different partners such as States, subordinated State entities or International Organizations. […] Issues that would have formerly been the subject of a binding treaty under international law are nowadays addressed through Joint Declarations of Intent. […] To illustrate this, let me provide you with an example of recent German practice: we have recently signed declarations for the implementation of a handball project; we have signed declarations on energy or general economic cooperation; and we have even signed detailed declarations spelling out the benchmarks of cooperation in the field of development aid or migration. Apart from the range of topics and the degree of detail, it is also the actors concluding such declarations, which can widely differ. Non-legally binding agreements can be signed for example by the German Federal Government, by single ministries, subordinate authorities or the German ‘Länder’.”

The designation of non-legally binding agreements

There is no uniform State practice on the title to be given to non-legally binding instruments. Terms include “Understanding”, “Memorandum of Understanding” (MoU), “(Joint) Statement of Intent”, “Arrangement”, “Agreed Minutes”, “Declaration” or “Communiqué”. The title itself does not say anything about the question of whether an instrument is legally binding or not. While the term “MoU” for some States clearly indicates a non-legally binding instrument, other States conclude “MoUs” containing binding obligations under international law. The Legal Adviser explained why Germany is trying to avoid the term “MoU”, stating:

“Since this denomination is ambiguous, our practice has aimed to avoid the usage of this term, preferring to call non-legally binding instruments ‘Joint Declaration of Intent’. The ‘Richtlinien für die Behandlung völkerrechtlicher Verträge’, the German Federal Government’s internal guidelines for dealing with international treaties as well as non-legally binding agreements, specify that the term ‘MoU’ should be avoided [sic] lest it is absolutely clear from the remainder of the document that it is non-binding. However, in practice this frequently causes a point of contention as many states prefer the term ‘MoU’ and discount mere ‘Declarations of Intent’ as something of lesser significance.”

The mentioned “Guidelines for the Treatment of International Treaties” state with regard to MoUs:

“A distinction must be made between legally binding international treaties and non-legally binding instruments which – in non-technical terms – are often classified under the term “Memorandum of Understanding” – MoU. What is meant are purely political instruments, usually referred to as arrangements (‘Memorandum of Understanding’ – MoU) or as Joint Declaration of Intent, which are not aimed at a legally binding regulation. It should be noted, however, that the title of ‘MoU’ is not unambiguous, as – depending on the context – it can sometimes also denote legally binding international treaties. […] Simply calling an instrument an arrangement, a ‘Joint Declaration of Intent’, a ‘Memorandum of Understanding’ or giving it any other designation that suggests an agreed non-legally binding statement does not make a document an instrument below the threshold of international treaty law.

Designations such as agreement or understanding are not to be used. The English expression “’Memorandum of Understanding’ (MoU) is – if possible – be avoided, even if it is often used for non-treaty instruments […]. However, the term is not unambiguous and is also used by some countries for legally binding texts […]. In order to avoid any misunderstandings about potential obligations, German bodies should work towards avoiding the designation as ‘MoU’ whenever possible when negotiating with the foreign partner. If this cannot be achieved, it should be stated in the text of the MoU that the instrument in question does not create any binding effect under international treaty law.”

While the large majority of Germany’s non-legally binding agreements is designated as “Joint Declaration of Intent”, the title of “MoU” cannot always be avoided – especially in case of multilateral instruments where other States insist on this terminology. For example, on 26 June 2017, the Federal Minister for Economic Affairs and Energy signed, together with colleagues from six other countries, a “Memorandum of Understanding of the Pentalateral Energy Forum on Emergency Planning and Crisis Management for the Power Sector”. In this case, however, the text of the document expressly stated at the end: “This Memorandum of Understanding does not create any rights or obligations under national or international law and does not intend to replace or modify any existing legal obligations between the signatories.” Germany also has no control over how the other signatory or signatories refer to the instrument in their press releases or other public statements. Thus, while Germany may speak of a “Joint Declaration of Intent”, the other State may refer to the document as “MoU”. Even the practice of German ministries is not always free of inconsistencies. For example, on 26 August 2020 the Federal Ministry for Economic Affairs and Energy referred to the “Joint Declaration of Intent between the Government of Ukraine and the Government of the Federal Republic of Germany on Establishing an Energy Partnership” in an English language press release as “Memorandum of Understanding on establishing an Energy Partnership”.

How to determine whether an instrument is legally binding or not

There is also no agreement among States on how to determine whether a certain instrument is legally binding or not. While some States seize on the title of the document or a single clause proclaiming the document to be non-legally binding to establish the legal character of the entire agreement, other States subject the entire document to comprehensive scrutiny in order to determine its legal character. Germany follows the second approach. The Legal Adviser stated:

“In our practice, the wording of the entire document as well as its structure is carefully checked to ensure that it contains not a single sentence suggesting a legally binding instrument.

In German practice on non-binding instruments, we will look for trigger words usually only used in international treaties, and ‘soften’ them down to a non-legally binding alternative. For example, the term ‘agreement’ is commonly associated with legally binding documents, even though by definition ‘to agree’ simply indicates a concurrence of wills of two sides. Despite the fact that in accordance with the literal meaning of the term there could be legally binding as well as non-legally binding agreements, in German practice we usually avoid the term ‘agreement’ when concluding declarations of intent.

Another example concerns the use of the future tense instead of the present tense, since the latter is usually reserved for binding treaties. Furthermore, words like ‘shall’ or terms like ‘enter into force’ are turned into their non-binding counterparts ‘will’ and ‘come into effect’.”

The “Guidelines for the Treatment of International Treaties” provide further insights into the German practice of adopting non-legally binding international agreements The Guidelines provide:

“In order to avoid any doubt about the nature of such non-treaty instruments on either side, in the interests of legal clarity, care must be taken that these instruments do not contain any elements or phrases typically associated with international treaties, in particular no treaty language.

Elements typically used when drafting treaties such as preambles, division into articles and done at clauses must not be employed. Expressions used in treaty or legal language (e.g. ‘contracting parties’, to undertake [obligations]’, ‘agree’, ‘entry into force’ and, not to forget, the use of the present tense used in treaties, which normally indicates legal obligation) must be rephrased using different terminology. For this purpose, certain words and phrases have emerged that are commonly viewed as not relating to treaties.”

A “Short Guide to the Drafting of Instruments below the Threshold of International Treaties”, annexed to the above “Guidelines”, provides that instead of a preamble a short introductory text in complete, strung together sentences without indentations and paragraphs should be used. If an enumeration of several points at the beginning is considered necessary, indented bullet points, rather than paragraphs are to be used. The introduction should be reserved for a narration of the history of the documents or an emphasis on common values, not for any substantive points. The term “contracting parties” is to be replaced with “sides”. The main text of the document is to be introduced with the phrase that the sides “have come to the following understanding”. As non-legally binding instruments cannot “enter into force”, the phrase “comes into effect” or “will be applied starting on the date of signature” is to be used in the final provisions. Similarly, as non-binding instruments are not denounced but can be terminated unilaterally at any time, no denunciation clause is necessary. The Short Guide also includes a helpful list of words and phrases to be avoided in non-binding instruments and the words and phrases to be chosen instead. The Glossary reads as follows:

Germany also takes great pains – both technically and procedurally – to make sure that no semblance of treaty-making is created. For the conclusion of treaties, Germany uses special paper, so-called “treaty paper”. With regard to non-legally binding instruments, the Guidelines for the Treatment of International Treaties expressly state: “The use of treaty paper is not permitted.” For such instruments, Germany uses a separate age-resistant paper (so-called Note or “MoU”-paper) which is provided by the Federal Foreign Office’s Political Archive which also keeps the official copy of any non-legally binding agreement. In contrast to treaties, non-treaty instruments are only loosely placed in a (reusable) blue folder showing the federal coat of arms and are neither sealed nor bound into a treaty folder. The signing ceremony must also differ from the signing of international treaties. Considering that non-legally binding instruments are of lesser importance, the signing ceremony must be kept simpler than that for an international treaty.

As the International Court of Justice observed in the Aegean Sea Continental Shelf case the “form” of an instrument is not conclusive of its legal status as a treaty or a non-legally binding agreement. It is rather the intention of the parties that is decisive. This intention may be ascertained not just by examining the content and terms of the agreement as well as the context and the circumstances of its adoption, but also by looking at the general practice of the States in the area of non-legally binding agreements. By setting out its practice in detail, Germany makes it easier for international courts and tribunals to establish its intention in the future.

Some notes of caution should be added. First, the main advantage of non-legally binding agreements is their flexibility, and perhaps even legal ambiguity. More standardisation and the formulation of fixed rules for the conclusion of such agreements may lead to a loss of flexibility. The express emphasis on their non-legally binding character may make it more difficult to hold States to their political commitments and hinder the progressive development of international law in the areas covered by such agreements.

Second, the inflationary use of non-legally binding agreements in recent years, together with the new concept of the so-called “rules-based international order” rather than an order based on international legal rules, undermines the force and credibility of international law. The JCPoA – also sometimes misleadingly referred to as the “Vienna Nuclear Agreement” – is a case in point. The Federal Government first portrayed the JCPoA for political reasons as a binding international agreement, despite the fact that it fulfilled all its criteria of a non-legally binding instrument, and then had difficulties in explaining why the United States could unilaterally terminate this “agreement”.

Third, standardisation and the formulation of Vienna Convention-style rules for non-legally binding international agreements, together with sometimes high-profile public signing or adoption ceremonies in order to attract media attention, may further blur the distinction between such instruments and binding international treaties. The more the impression is created that the making of such instruments, their interpretation, amendment, termination and effects is governed by “rules”, the more difficult it is to explain why States can simply walk away from such agreements. There is a danger that in the end all international agreements – whether legally binding or not – will simply be seen as good photo opportunities for political leaders.

DOI: 10.17176/20220627-172844-0