Anthony Aust. Handbook of International Law

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An international agreement concluded between states

An agreement between a state and a multinational company, such as an oil concession, is not a

treaty,

even if it says that it shall be interpreted by reference to rules of international law.

Treaties

between states and international organisations or between international organisations are not covered

by the Convention (Article 3), but are the subject of the Vienna Convention on the Law of Treaties

between States and International Organizations or between International Organizations 1986 (‘the

1986 Convention’).

The 1986 Convention follows the 1969 Convention very closely.

In written form

Even though the original text of a treaty is usually typed or printed, it can be in a telegram, telex, fax

message or e-mail, or rather in an exchange of them.

Governed by international law

This means that there must be an intention to create obligations under international law.

The

intention must be gathered from the terms of the instrument itself and from the circumstances of its

conclusion, not from what the parties say afterwards was their intention.

Although a treaty can be in any form, government lawyers may use carefully chosen vocabulary to

indicate that, rather than creating a treaty, the participants intend only to record their mutual

understandings. Such instruments are an important means for doing business between states, and a

large number, both bilateral and multilateral, are made every year covering a wide range of

subjects.

Most are never published. Such instruments have been described by using various terms,

including ‘gentlemen’s agreements’ and ‘political agreements’, but are now most

9. Anglo-Iranian Oil Company (United Kingdom v. Iran) (Preliminary Objections), ICJ Reports (1952), p.

89, at p. 112; 19 ILR 507.

10. See C. Greenwood, ‘The Libyan Oil Arbitrations’ (1982) BYIL 27–81. See p. 57 below on agreements

between states which are governed by domestic law.

11. ILM (1986) 543. It is not yet in force. See p. 58 below.

12. Aegean Sea Continental Shelf case, ICJ Reports (1978), p. 3, at pp. 39–44; 60 ILR 562.

13. Qatar v. Bahrain, ICJ Reports (1994), p. 112, paras. 26–7; ILM (1994) 1461; 102 ILR 1.

14. For an example, see ILM (1982) 1.

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commonly referred to by the abbreviation ‘MOU’ (see below), which is short for ‘Memorandum of

Understanding’.

Whether embodied in a single instrument or in two or more related instruments

The classic form of a single instrument treaty has for a long time been joined by treaties drawn in

less formal ways, such as exchanges of (diplomatic) notes (or letters), which usually consist of one

initiating note and one reply note. They can be on matters of national importance or the mundane.

Although they are often self-standing, they can be supplementary to another treaty. A treaty can also

consist of several instruments.

Whatever its particular designation

International instruments are not designated (named) systematically, and so the name, in itself, does

not determine its legal status. What is decisive is whether the negotiating states intend the instrument

to be (or not to be) legally binding. Although it is reasonable to assume that an instrument called a

Treaty, Agreement or Convention is a treaty, one should examine the text to make quite sure. Most

other names are problematic. Both the UN Charter and the Charter of the Commonwealth of

Independent States 1993 (CIS)

are treaties, but the OSCE Charter of Paris 1990

and the

Russia–United States Charter of Partnership and Friendship 1992

are MOUs. Calling an

instrument a Memorandum of Understanding does not establish its status, since – and most

confusingly – some treaties are also given that name.

Only by studying the text can one decide its

legal status.

An exchange of notes (or letters) also may constitute either a treaty or an MOU. If the exchange is

intended to be a treaty, it is customary to provide expressly that it ‘shall constitute an agreement

between our two Governments’; if intended as an MOU, it is usual to specify that the exchange

‘records the understanding of our two Governments’ (emphasis added).

15. See p. *** below on the establishment of the Iran–US Claims Tribunal.

16. ILM (1995) 1279.

17. ILM (1991) 193.

18. ILM (1992) 782.

19. See Aust, p. 20.

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Treaty names

Treaties have always been given a variety of names, including less common ones like Compact,

Solemn Declaration, Protocol of Decisions, Platform, Concordat, Agreed Minute and Terms of

Reference. In 1992, a treaty between Lithuania and Russia on the withdrawal of Russian forces from

Lithuania was concluded with the simple name ‘Timetable’.

It is quite common to refer to a treaty

by reference to the place where it was negotiated or concluded. For example, the Convention on

International Civil Aviation 1944 is usually called ‘the Chicago Convention’.

A treaty does not have to be signed

The Convention’s definition of a treaty does not mention signature because signature is not

necessary. A treaty can be constituted by an exchange of third-person diplomatic notes, which are

initialled but not signed. An unsigned, and uninitialled, instrument may be preferred for purely

political reasons.

MOUs

States indicate their intention to conclude a treaty by consciously employing terminology such as

‘shall’, ‘agree’, ‘undertake’, ‘rights’, ‘obligations’ and ‘enter into force’. As already indicated, when

states intend to conclude an MOU, instead of ‘shall’ they use a less imperative term, such as ‘will’.

Terms like ‘agree’ or ‘undertake’ are avoided; the instrument is expressed to ‘come into operation’

or ‘come into effect’; and most of the final clauses usually found in treaties and the testimonium (the

final, formal wording of a treaty beneath which the diplomatic representatives sign)

are omitted.

The instrument will normally be called a ‘Memorandum of Understanding’ or ‘Arrangement’. Some

MOUs, like the Helsinki Final Act 1975, have an express provision to the effect either that they are

not eligible for registration (as a treaty) under Article 102 of the UN Charter

or that they are

‘politically binding’.

Problems can arise when states later

20. Sadly, the name was changed when it was registered: see 1690 UNTS 395 (No. 29146).

21. For an EU example, see UKTS (1994) 2.

22. See Aust, pp. 352–3.

23. ILM (1975) 1293. As to Article 102, and the legal effect of registration or non-registration, see p. 112

below.

24. ILM (1987) 191, at p. 195, para. 101.

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differ on the status of an instrument, chiefly bilateral. It is therefore essential that the status is clearly

agreed during the negotiation.

The fifty-three Members of the Commonwealth tend to use MOUs, bilateral or multilateral, even

in those cases where other states might employ a treaty. The Commonwealth schemes for mutual

legal assistance in criminal matters and extradition are set out only in MOUs.

The member states

of the European Union use MOUs,

as do most other states.

In US practice, use of non-treaty language does not necessarily preclude the instrument from

being a treaty. To overcome some of these problems in the defence field, the United Kingdom,

Canada and Australia have concluded ‘chapeau agreements’ with the United States.

Today, MOUs are employed in most areas of international relations – diplomatic, defence, trade,

aid, transport etc. In many cases, a treaty could be used, but for the reasons given below an MOU is

used instead. Frequently, MOUs supplement treaties.

A common reason for preferring an MOU is confidentiality. Many arrangements, especially in the

defence field, must be kept confidential and are therefore found only in MOUs. Often, a defence

treaty will be supplemented by numerous MOUs.

MOUs do not need elaborate final clauses or the formalities (international or national) which

surround treaty-making. Most often, an MOU will become effective on signature. Not being a treaty,

an MOU is generally not subject to any constitutional procedures, such as presentation to parliament,

although that will depend on the constitution, laws and practice of each state. The lack of formalities

also means that an MOU is much easier to amend.

Are MOUs really treaties?

Some doubt has been expressed as to whether the distinction between MOUs and treaties is valid,

since each embodies some sort of agreement.

This theory ignores the abundant state practice. A

state is free to conclude, or not to conclude, treaties. When they do not wish to conclude a legally

25. See p. 264, n. 5 below.

26. See EU Doc. PESC/SEC 899 of 9 August 1996. See also the Opinion of the Advocate-General of the

European Court of Justice in France v. Commission [1994] ECR -3641; 101 ILR 29.

27. See Aust, p. 34.

28. See Aust, p. 36.

29. J. Klabbers, The Concept of Treaty in International Law, The Hague, 1996.

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binding instrument, they make this clear by a deliberate and careful choice of words.

But can an MOU sometimes have legal consequences? Although this will depend on the

circumstances and the precise terms of the MOU, the intention of a state as expressed in an MOU

may exceptionally have legal consequences. In general, when a clear statement is made by one state

to another, and the latter relies upon that statement to its detriment, the first state is estopped from

going back on its statement. Underlying this is the fundamental international law principle of good

faith.

Agreements between states governed by domestic law

States also contract with each other under domestic law, if, for example, the subject matter is

exclusively commercial, such as the purchase of commodities in bulk. If a state leases land from

another state for an embassy, there will be an instrument under domestic law, such as a lease, even

though this may be granted pursuant to a treaty.

Capacity to make treaties

Treaties are made between subjects of international law, predominantly states; between states and

international organisations; and between international organisations. Every state possesses the

capacity to conclude treaties (Article 6). There is no difference in international law between a treaty

concluded on behalf of states and one concluded on behalf of governments or their ministries

(including other agencies of the state, but generally not public bodies which have legal personality

separate from that of the state).

A treaty entered into by a government or ministry binds the state,

and changes of government will not affect its binding force on the state.

Federations

Federal constitutions vary as to whether their constituent units have the power to enter into treaties.

The Australian states, the Canadian provinces

30. On good faith and estoppel, see p. 9 above.

31. See p. 124, n. 15 below.

32. See p. 411 below and Oppenheim, pp. 346–8.

33. See also p. 25 above.