LEGALLY BINDING INSTRUMENTS
The International Law Commission, which is studying this subject since the early 60s, defines a “treaty” as:
“Any international agreement in written form, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memo-randum of agreement, modus vivendi or any other appellation), concluded between two or more States of other subjects of international law and governed by international law.”>
In other words, there might be several different terms used, depending on a variety of factors (linguistic, political, usage, etc.), but when it comes to legal significance these are all “treaties” or “international agreements”, i.e., legally binding agreements be-tween subjects of International Law.
The manner in which a treaty is negotiated and brought into force is governed by the intention and consent of the parties. There are no substantive requirements of form and, thus, an agreement may be signed by authorised plenipotentiaries, or just record-ed in the minutes of a conference. In practice, form is governed partly by usage and thus form will vary accordingly as the agreement is expressed to be between states, heads of states, governments (a practice increasingly used nowadays – “Executive Agreements”), or particular ministers or departments.
The era of absolute monarchs and slow communications produced a practice in which a sovereign’s agent would be given a Full Power to negotiate and to bind his principal. In the case of agreements between governments today, Full Powers are often dis-pensed with.
The agreed next needs some form of authentication. This can take the form of a signa-ture, or also incorporation in the final act of a conference or mere initialing. Ratifica-tion is required only when this is required in the agreed text itself. Where the treaty is not subject to ratification, acceptance, or approval, signature alone creates the same obligation of good faith and establishes consent to be bound.
An Executive Agreement is often substituted for a treaty and does not require the ad-vice and consent of the legislature, though it may be entered into pursuant to formal authority delegated by the legislature in particular legislation. Executive Agreements, however, are restricted to narrower topics. Trade agreements, for example, are often Executive Agreements rather than treaties.
Addendum is a supplemental section of a document containing material added after the document was prepared. Usually, the scope is quite narrow and it cannot be a question of “law making.” It may be executed simultaneously or at a later time.
A Protocol, according to the same international usage, is in reality a new instrument expanding the scope of a previous one, to which it usually makes reference in its very title (for example: the “1972 Protocol to the 1961 Single Convention”). A Protocol is subjected to the same procedure of authentication, including ratification, as the origi-nal treaty.
In the case of the MOU, we are moving within the area of legally binding Executive Agreements, i.e., a kind of international treaties which do create legal obligations albe-it they do not require ratification, since such a requirement is not laid down in the agreed text. Inherent to this is the fact that the scope should be quite narrow as op-posed to a full-fledged treaty. In other words, the MOU is legally binding, and so are its amendments or supplements, insofar as these are explicitly agreed upon by the competent national authorities, duly representing their respective governments.
NON-BINDING INSTRUMENTS
In addition to the rather rich vocabulary employed in the case of legally binding in-struments, as per above, there is a terminology denoting non-binding instruments. The most usual here are the terms “declaration” and “resolution,” while the term “recom-mendation(s)” also appears quite frequently.
Here, again, the different designation is related to a different function, a different context etc., rather than a difference in legally binding force, which is always non-existent. At best, such instruments can be used as secondary sources of international law, but not primary ones.
Nevertheless, (to complicate the issue a little more), it happens sometimes that an in-ternational instrument entitles “declaration” becomes legally binding by means of in-ternational customary law, or subsequent treaty. Such is the case of the 1948 Universal Declaration of Human Rights, which is now generally regarded as a legally binding instrument.
CONCLUSION
Although the terminology used is unlikely to produce any legal consequences per se, it is more appropriate to use the term “Addendum” for a supple-ment/amendment/expansion of the MOU. The word “Protocol”, according to interna-tional usage, may be misleading here and give rise to expectations of a formal treaty being concluded, which would in its turn require ratification. Basically, the following reasons support the adoption of the term “Addendum:”
- In order to better comply with international usage, according to which the term “Protocol” refers to follow-up agreements to already existing full-fledged treaties.
- In order to be linguistically more correct.
- In order to eliminate any chance of misinterpretation. The use of the word “Proto-col” might possibly give rise to expectations of ratification.
- Politically, the word “Addendum” might be less “threatening” and easier to accept.
