{"id":15211,"date":"2021-09-15T08:00:01","date_gmt":"2021-09-15T06:00:01","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=15211"},"modified":"2021-09-15T17:49:23","modified_gmt":"2021-09-15T15:49:23","slug":"memoranda-of-misunderstandings-part-ii","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/memoranda-of-misunderstandings-part-ii\/","title":{"rendered":"Memoranda of (Mis)Understandings (Part II)"},"content":{"rendered":"

As described in Part I<\/a> of our post, non-legally binding arrangements (NBAs) play an \u00a0ever larger role in foreign policy. As a response to their growing popularity and to avoid creating legal obligations \u2018by mistake\u2019, States have started to adopt internal guidelines on the drafting and signing of NBAs (see Part I). While such guidelines may create a domestic understanding regarding the differentiation between legally binding treaties and NBAs, misunderstandings and disputes on the international level regarding a document\u2019s nature have repeatedly ended up before international tribunals<\/a>. In more recent years, States have sought to address the delineation question also on the international <\/a>plane (p. 498 et seq.). Taking up such initiatives, the recent CAHDI expert workshop<\/a> raised the question of the relevance and desirability of a (regional) standardisation effort regarding NBAs. A flagship project are the \u2018Guidelines on Binding and Non-Binding Agreements<\/a>\u2019, drafted under the auspices of the Organization of American States<\/a>\u2019 (OAS) Inter-American Juridical Committee<\/a> (IAJC) which were presented during the workshop. This second part of our post will introduce the IAJC\u2019s Guidelines<\/em> and draw some conclusions for future standardisation aspirations.<\/p>\n

Background and Scope of the IAJC\u2019s Guidelines<\/em><\/strong><\/p>\n

The OAS comprises all 35 independent American States<\/a>. One of its organs is the IAJC (Art. 53(d) OAS-Charter<\/a>), which consists of eleven jurists and serves \u2018as an advisory body on juridical matters\u2019 (Art. 99 OAS-Charter). The topic of \u2018MoUs\u2019 entered the IAJC\u2019s agenda in 2016<\/a> when Brazil\u2019s legal adviser proposed \u2018a review of the practice of States regarding memoranda of understanding that are adopted by various national agencies and sent to Congress for approval\u2019 (p. 160). While this prompted comments on the nature of MoUs (binding or non-binding), it also triggered a discussion on the capacity of ministries, agencies, and sub-national territorial units to enter into international binding cooperation (p. 124). Returning to the topic in 2017<\/a>, the IAJC appointed its American Committee-member, Professor Duncan Hollis<\/em>, as Rapporteur on \u2018Binding and Non-Binding Agreements\u2019.<\/p>\n

In his Preliminary Report<\/a>, Hollis<\/em> proposed distributing a questionnaire to the OAS-States to gather further information on their relevant practice (para. 59, 62; for the questionnaire, see Second Report<\/a>, para. 69). Based on the 13 responses received, Hollis<\/em> presented a further six reports<\/a>, ultimately resulting in the adoption<\/a> of the Guidelines<\/em> in 2020. They encompass a total of 29 guidelines with commentaries, divided into six sections. Based on the broad discussions in the IAJC on who<\/em> can sign what<\/em> in inter-state relations, the scope of the Guidelines<\/em> extends beyond differentiating between treaties and NBAs. In section 1, the Guidelines<\/em> identify three types of \u2018agreements\u2019: treaties, political commitments (what we refer to as NBAs) and contracts. Based on the definition of these \u2018agreements\u2019, the following four sections address questions of capacity and procedure to sign them, methods for their identification and what \u2013 if any \u2013 (legal) effects they may produce. The final section proposes the training of State officials in this regard.<\/p>\n

Giving the Child a Name<\/strong><\/p>\n

Attentive readers of Part I of our post may have stumbled across the title of the Guidelines<\/em> (and the CAHDI workshop, for that matter) referring to binding and non-binding agreements<\/em>. Often used interchangeably with the term \u2018treaty\u2019, many States avoid the word \u2018agreement\u2019 in the context of NBAs. However, at the core of the Guidelines<\/em> lies a wider perception of the term: \u2018Agreement\u2019 is understood to encompass the two core elements of mutuality and commitment (guideline 1.1), without any prejudice regarding such commitments\u2019 (legal) nature. By referring to \u2018binding and non-binding agreements<\/em>\u2019, the Guidelines<\/em> intend to exclude unilateral acts (lacking mutuality) or mere \u2018agreed views\u2019 (lacking a consented future behaviour) from their scope.<\/p>\n

There is certainly some merit to Hollis\u2019 arguments for such conceptualisation<\/a> (paras. 87 et seq.). Regarding future (domestic\/international) works on treaty\/NBA-delineation, we nevertheless question its practicability. From a practical perspective, the best way to avoid \u2018potential confusions\u2019 (para. 91) is to use different designations when speaking of different instruments. Similarly, the Guidelines<\/em> introduce the umbrella term \u2018agreement\u2019, only to speak of \u2018political commitments\u2019 when referring to non-binding and \u2018treaties\u2019 when referring to binding instruments. Moreover, from a conceptual point of view, any definition of \u2018agreement\u2019 \u2013 even of its core elements \u2013 is inclined to face inconsistencies. Hollis\u2019<\/em> reference (para. 88) to the International Law Commission\u2019s (ILC) work and today\u2019s use of \u2018agreement\u2019 in the Vienna Convention on the Law of Treaties<\/a> (VCLT) goes to show: The devil lies in the detail.<\/p>\n

A case in point are subsequent agreements. While \u2018agreements\u2019 in the VCLT are generally legally binding (cp. Art. 39), subsequent agreements as provided for in Art. 31(3)(a) \u2018need not, as such, be legally binding\u2019 (Commentary, p. 77<\/a>). This proves Hollis<\/em>\u2019 point that the term \u2018agreement\u2019 is not per se<\/em> informative of the (legal) nature. Instead, a subsequent agreement merely \u2018requires a common understanding regarding the interpretation of a treaty\u2019 (ILC Draft Conclusion 10<\/a>, p. 75). Requiring a \u2018common<\/em> understanding\u2019, the ILC\u2019s definition underscores Hollis\u2019 <\/em>element of mutuality. Needing only an understanding<\/em> \u2018attribut[ing] a certain meaning to the treaty\u2019 (p. 78), however, the ILC\u2019s definition arguably lacks the element of commitment. An \u2018agreed view\u2019 could, thus, constitute a subsequent agreement in the sense of Art. 31(3)(a), but not an agreement as defined in the Guidelines<\/em>.<\/p>\n

In conceptualizing \u2018agreement\u2019, Hollis<\/em> rightly recapitulates: While all treaties are agreements, not all agreements are treaties. Regarding the Guidelines\u2019<\/em> compared to the VCLT\u2019s conceptual use of \u2018agreement\u2019, however, one might have to add: While all mutual commitments are agreements, not all agreements (in the VCLT) seem to indeed be commitments.<\/p>\n

Codification, Guidelines and \u2018Best Practices\u2019<\/strong><\/p>\n

Speaking of the ILC, the title \u2018Guidelines<\/em>\u2019 might raise associations with other projects on the law of treaties beyond the VCLT (cp. the Guidelines on Reservations to Treaties<\/a>). In contrast to these works, however, the IAJC\u2019s Guidelines<\/em> \u2018are not intended to codify international law nor offer a path to its progressive development<\/a>\u2019 (p. 10). Instead, they offer \u2018voluntary understandings and practices\u2019, advising States on reducing the risk of disputes. This is not for lack of a mandate. Like the ILC, the IAJC may \u2018promote the progressive development and the codification of international law\u2019 (Art. 99 OAS-Charter). Thus, Hollis<\/em> initially<\/a> pointed the IAJC to ambiguities in international law and practice and offered to draft a set of \u2018general principles\u2019 (para. 57). While some States and international tribunals employ a subjective, intent-based approach to delineate treaties from NBAs, others rely on an objective test (cp. Part I and guideline 3.2, commentaries). By adopting the \u2018general principles\u2019, the OAS-States would have committed themselves to a subjective test. However, upon diverging responses to his questionnaire, Hollis <\/em>advised<\/a> the IAJC against any such standardisation (p. 20-22).<\/p>\n

In opting for \u2018best practices\u2019 instead, the Guidelines<\/em> serve as an important orientation for (OAS-)States seeking to (re)draft internal guidelines. At the same time, this approach reduces some of their (potential) added value as a reference point in inter-state negotiations. Neither are the Guidelines<\/em> authoritative; other States, thus, cannot rely on their OAS-partners acting in the manner advised. Nor do the Guidelines<\/em> provide a comprehensive overview of the OAS-States\u2019 existing practice. While third States may gather some information on their partner\u2019s practice from Hollis\u2019 <\/em>reports and the Guidelines\u2019<\/em> commentaries, the Guidelines <\/em>do not depict the OAS-State practice in total. Rather, they advise States to publicise information on their procedures, even contemplating a further, concerted publication by the OAS (guideline 4.5).<\/p>\n

Towards Standardisation? \u2013 Towards Standard Training!<\/strong><\/p>\n

Were CAHDI to pick up on the idea of a (regional) standardisation floated during the expert workshop, the question of the authoritativeness of any outcome would, similarly, arise. Moreover, the call for standardisation is generally based on two assumptions: That current standards are not uniform and that uniform practice is necessary, for example, to create certainty, avoiding misunderstandings. At first sight, both assumptions hold true. As Hollis<\/em>\u2019 reports and statements at the CAHDI workshop demonstrate, both States and international tribunals apply differing tests to delineate treaties and NBAs. And the fact that case law on the issue exists appears to evidence the necessity of uniformity best. Nevertheless, we argue that concerning NBAs, both assumptions are questionable.<\/p>\n

Regarding the first, we would point to Aust\u2019s <\/em>standard work<\/a> on treaty practice. Since its first publication, the book has included a comparative table on binding and non-binding language (Appendix G). While we cannot answer the \u2018chicken or the egg\u2019 question, any domestic guidelines on NBAs that we are aware of employ largely similar wording compared to Aust\u2019s<\/em> table. The same holds true for the suggested wording in the IAJC\u2019s Guidelines<\/em> (Table 2). Should our readers be aware of guidelines proposing significantly different wording, we would be very interested to learn of them.<\/p>\n

Thus, although States apply different tests in delineating treaties from NBAs, a basic common drafting<\/em> standard seems to exist, which they believe to satisfy both a subsequent subjective and objective assessment of the document. Based on our experience, the problem, thus, is not a lack of uniform standards but rather the lack of implementation thereof. With similar internal standards, State officials should be able to negotiate texts based on a common understanding, precluding misunderstandings and absorbing minor differences. Achieving this, however, does not require standardisation, but primarily internal action: Through the adoption of (mandatory) internal guidelines\/procedures where they do not exist and, most importantly, training and education. Therefore, although appearing rather nondescript at first glance, the last section of the IAJC Guidelines <\/em>(\u20186. Training and Education Concerning Binding and Non-Binding Agreements\u2019) cannot be highlighted enough.<\/p>\n

That is not to say that international exchange is superfluous. First, it can assist States lacking internal guidelines in establishing such standards. Secondly, it can help verify our proposition regarding largely uniform standards. And lastly, should standards indeed diverge, knowledge of the negotiating partner\u2019s practice and procedures, rather than their standardisation, could already help preclude misunderstandings.<\/p>\n

 <\/p>\n

The views and opinions expressed in this post are those of the authors and do not purport to reflect the positions of any entity the authors were or are currently affiliated with.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

As described in Part I of our post, non-legally binding arrangements (NBAs) play an \u00a0ever larger role in foreign policy. As a response to their growing popularity and to avoid creating legal obligations \u2018by mistake\u2019, States have started to adopt internal guidelines on the drafting and signing of NBAs (see Part I). While such guidelines […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6878,6681],"article-categories":[6000],"doi":[],"class_list":["post-15211","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-florian-held","authors-sabrina-schafer","article-categories-article"],"acf":{"subline":"Towards Standardisation? \u2013 The Guidelines of the Inter-American Juridical Committee on Binding and Non-Binding Agreements"},"meta_box":{"doi":"10.17176\/20210915-173221-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/15211","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=15211"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/15211\/revisions"}],"predecessor-version":[{"id":15285,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/15211\/revisions\/15285"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=15211"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=15211"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=15211"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=15211"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=15211"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=15211"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}