Trade Law: The legal effects of non-legally binding instruments - International Law Commission report
🇬🇧Final reminder for London-based readers, I’ll be in London the second week of July. I’d welcome any recommendations (including of good coffee), and always keen for a chat about trade. Please do get in touch if you’ll be around and also like to talk about trade.
Thanks to Shantanu Singh for pointing this out on X/Twitter, the International Law Commission’s Special Rapporteur on non-legally binding international agreements has issued his First Report on Non-Legally Binding International Agreements (the First Report):
As I mentioned on X/Twitter, this will be an interesting report to watch. The trade angle is that non-binding arrangements are common tools used in negotiations, including to:
Capture early outcomes and ‘agreements’ on the way to a final agreement;
Avoid lengthy or more difficult domestic approval procedures that apply to legally binding agreements;
Reflect outcomes that may not need to be in the form of legal rights and obligations, for example agreements to meet or cooperate;
Provide comfort on sensitive or contentious issues that one side can’t agree to legally binding outcomes on.
More cynically, it may also be that governments realise that it’s just as possible to get a headline with a non-legally binding outcome as a legally binding one.
These arrangements can be done in standalone instruments, such as the UK’s MOUs with American states like Florida, the Australia-Singapore Green Economy Agreement, or the Canada-Korea MOU on Critical Mineral Supply Chains, Clean Energy Transition and Energy Security. They can also be done in association with a legally binding trade agreement, such as the Australia-Indonesia MOU on engineer mutual recognition; or indeed while the trade agreement is trying to get settled, such as the Australia-EU MOU on critical minerals.
Sometimes the legal status of these documents isn’t crystal clear from their text - particularly if they done in association with trade agreement negotiation (where often they are done to record something that was too sensitive or difficult to put into legal text, but one side may really want the outcome to be legally binding). There are lengthy guides with particular phrases to use/avoid to make sure the document is/isn’t legally binding (see e.g. Australia’s here and here, Canada’s here, New Zealand’s here, and an older US one here). But views can differ and there tends to be a degree of flexibility to accommodate strategically ambiguous outcomes at times.
Non-binding arrangements can be interesting things to negotiate and advise on. There can be a tension if one side wants legally enforceable commitments and the other really doesn’t - the outcome can sometimes be ambiguous or perhaps a mess. Even if both sides don’t want a legally binding text, they may think highlighting this too prominently will undermine the credibility of the outcome - similarly leading to complicated or unclear drafting. Negotiators may also be less worried about the content of a non-legally binding text as compared to a ‘real agreement’.
However, ‘non-binding’ instruments can still have legal effects (and of course even breaking a ‘political’ commitment can be difficult and have serious consequences).
As the First Report notes:
135. First, in view of the Commission’s prior work, it should at least be established that the fact that an international agreement is non-binding does not prevent it from producing or being attributed some legal effects. … the Commission considered that non legally binding agreements could be taken into account within the framework of the general rule of treaty interpretation reflected in article 31 of the 1969 Vienna Convention. This amounts to endowing such agreements with a greater interpretative effect than, for example, preparatory work, which is referred to only in the context of supplementary means of interpretation in article 32 of the Convention. Similarly, the Commission’s work relating to customary international law strongly suggests … that such agreements can constitute means of establishing customary international law. It would be worthwhile to re-examine this issue more explicitly.
Some of the potential legal effects could be substantive and relevant to instruments used in the trade context (especially where the instrument is done in association with a full trade agreement).
For example, the First Report notes that:
138. The (potential) legal effects that appear to merit consideration include the following:
(a) It would be useful to examine whether good faith (as a legal and not just a moral or political principle or obligation) applies to these agreements. Article 13 of the draft declaration of the rights and duties of States, adopted by the Commission in 1949, limited the exercise of good faith to “obligations arising from treaties and other sources of international law”. Since then, the question of whether this should be extended to non-binding commitments has regularly been raised, without that leading to a non-binding agreement becoming a binding agreement;
(b) The same question could be posed in connection with the obligation to cooperate: in a situation (arising in practice) where an institutionalized mechanism for monitoring (or settling disputes resulting from) a non-legally binding international agreement is established, the existence of such a mechanism is likely to generate some legal effects, which should be identified;
…
(d) The extent to which non-legally binding international agreements can be taken into account for the purposes of interpreting other international rules, and more broadly as “applicable law” in the international order, deserves to be examined in detail. In particular, the effects of interpretative agreements and their relationship with the concept of authentic interpretation will need to be explored, as will the legal relationship between non-legally binding agreements and the various means of interpretation (and not just subsequent agreements) of international norms. The legal parameters for (and possible limits on) the use of non-legally binding agreements as a means of interpretation should also be identified, indeed given the non-binding nature of such agreements;
…
(g) A recurrent debate among authors concerns the applicability of estoppel and acquiescence (or, more broadly, of all the mechanisms that can be linked to the protection of legitimate expectations) to non-legally binding international agreements;
(h) It is also worth asking to what extent a non-legally binding agreement can suffice to constitute consent precluding wrongfulness under the law of responsibility;
(i) Some authors also recognize that non-legally binding agreements have a permissive or “legality” effect, in the sense that their conclusion would authorize the parties thereto to act in the manner provided for in the agreement – at the very least (although authors are divided as to this limitation) as long as that does not lead them to violate other obligations that are otherwise applicable to them; …
It will be interesting to see the Special Rapporteur’s conclusions/recommendations and how they inform practice in this area, as well as what relevance they’ll have for the related issue of purportedly ‘non-binding’ provisions in an otherwise binding agreement.