Choose your Instrument

Introduction

The content of my subject, however jejune, is important for many agencies and departments in carrying out their international operations. The ineluctable truth is that written arrangements form the essence and foundations of Australia's foreign policy. So, in order to advance Australia's national interests, departments and line agencies must conclude written arrangements with other countries. And they must get it right.

In the first segment I am going to discuss which kind of instrument you should choose in order to embody an international arrangement: a treaty; or an instrument of less than treaty status.

Treaty status or less than treaty status?

The Need to avoid Confusion over the Status of the Instrument

The first thing to say is that, confusion often arises over whether the instrument being negotiated is supposed to be legally binding. There are plenty of examples I could point to. But I will simply quote from Anthony Aust's book Modern Treaty Law and Practice [p 29]. Aust wrote the book when he was a Deputy Legal Adviser in the United Kingdom's Foreign and Commonwealth Office. In the book he recorded that:

• he knew of two bilateral instruments which were about to be signed when it came to light that its prospective parties differed on whether or not the instruments were legally binding; and
• he also knew of four other instruments where the parties discovered - after the instruments had taken effect - that they differed about whether or not the instruments were legally binding.

Well how can states get something so elementary, so important, so wrong? It usually comes down to the fact that they mistake each other's intentions. Many officials suppose any written 'agreement' between states is a treaty (whatever title it may be given) and they also suppose that every treaty in force is binding upon its parties. [Cf Articles 2 1 (a) and 26, Vienna Convention on the Law of Treaties (Vienna, 23 May 1969).] Actually, it is not quite that simple.

A treaty - by definition - is an agreement governed by international law. If the parties to an instrument do not intend that international law will govern an instrument (or, for that matter, any law) then that instrument is not a treaty. [Article 2 1 (a) Vienna Convention on the Law of Treaties (Vienna 23 May 1969); Article 2 1 (a) Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (Vienna, 21 March 1986, Not yet entered into force); cf S Rosenne, The Law of Treaties, pp 44-45.]

Further, if the parties do not intend that an instrument should be legally binding then - in my opinion - it cannot be subject to any legal enforcement on the international plane. And, if it is not legally enforceable on the international plane it is not governed by international law. And, if it is not governed by international law - by definition - it is not a treaty.

Also, in my opinion, if the parties do not intend that an instrument is to be legally binding then technically and legally that instrument is not even an agreement. This tenet is not an idiosyncrasy of international law; it bears a reasonable analogy with domestic law. At common law, a defining element of a contract is the intention to create legal relations. (That is, the voluntary assumption of a legally enforceable duty.) Without that intention there is no contract. [Australian Woollen Mills v The Commonwealth (1954) 92 CLR p 424; cf South Australia v Commonwealth (1961) 108 CLR p 130.] An 'agreement' may be defined as something that is settled or determined. If there is no way of settling or determining differences over the meaning of a text; if the parties may go their own separate ways when disagreements arise over the operation of a text; if they may ascribe different meanings to the text; in short - if they have the right to disagree - then there is an 'agreement' in name only. Legally, there is no agreement. And, as I mentioned before - by definition - a treaty is an agreement.

Interestingly, there is a persuasive view that when States enter into a compact or arrangement on the international plane - what might be loosely and imprecisely termed an 'international agreement' - there is no presumption that such an agreement is intended to be legally binding. Often, negotiators of such international agreements are ignorant of this view and actually presume the opposite. (They do not know - or do not accept - that such an agreement is only binding if the language in the agreement manifests an intention to be legally bound.) This leads to fundamental problems.

Indeed, it has even been argued that there is a presumption against such international agreements being legally binding. (JES Fawcett, The Legal Character of International Agreements, 1953, BYBIL,pp 381-400 at pp 386-87, 400[; contra J Klabbers, The Concept of Treaty in International Law (1996)].)

That said, a government may enter into an agreement which manifests an intention to be legally bound without knowing it at the time. There are many examples of such misunderstandings.

A salient specimen is the South-West Africa case (ICJ, 1950). The Republic of South Africa made a series of statements (concerning its administration of the 'mandated' territory of South-West Africa) to the UN General Assembly. The Assembly assumed that these statements constituted recognition by the Republic that certain supervisory functions regarding this territory had been transferred from the League of Nations to the UN. The Republic never believed that the communications had this legal effect. [I Goldblatt, The Mandated Territory of South West Africa in relation to the United Nations, pp 30-31.] Still, the International Court of Justice held that the Republic's obligations as 'a mandatory Power' continued and that they were now owed to the UN. Put simply, after the League of Nations ceased to exist, the Republic had agreed that its own obligations continued and it had acted accordingly. [Faye Carroll, South West Africa and the United Nations, pp 53-54, 57-71.]

'Agreed' is the significant word here. One of the ICJ judges in that case, Judge Read, elaborated on what constitutes an arrangement 'agreed' between two states. It necessarily included two elements: 'a meeting of the minds; and an intention to constitute legal obligations.' [South-West Africa case, ICJ Reports 1950, pp 170-71; cf GG Fitzmaurice; The Law and Procedure of the International Court of Justice: Treaty Interpretation and Other Treaty Points, 1951 BYBIL, pp 1-28, at pp 25-26; JES Fawcett, above, p 387.] To put it conversely (and hearkening to what I said before) if the parties do not intend that an instrument should constitute legal obligations then that instrument is not legally an 'agreement'.

Judge Read's view was supported - implicitly - by a judgment of the International Court of Justice on 15 February 1995 in a case between Qatar and Bahrain. The case concerned 'Minutes' of a meeting and exchanges of letters, which were not in the customary legal form for a treaty. The court held that these documents were binding. The critical point was that one of the instruments (minutes of a meeting) had recorded that the states had 'agreed'. That agreement was held (in the particular circumstances) to be enforceable on the international plane. [Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility);cf Aegean Sea Continental Shelf case, ICJ Reports 1978, p 3, pp 39 & 44; McNair, Law of Treaties, 2nd Ed, pp 12-15.]'

The Nature of an Instrument of Less than Treaty Status

The second thing to say is that, from an Australian perspective, there are only two choices: treaty status or less than treaty status. A treaty is legally binding; an instrument of less than treaty status is not. There is no middle ground. Other countries with whom we negotiate instruments sometimes suppose that an instrument of less than treaty status may be legally binding. This is a practice that we do not recognise. So, when you approach an agency of another country to negotiate an international instrument (other than a domestic contract) please remember that there are only two choices. It is important that the other side knows this and acknowledges it.

What should be made clear to the other side is that:

• In Australian practice, instruments of less than treaty status are characterised as instruments which none of its parties intends to enforce legally.
• These instruments only embody political and moral commitments by their parties.
• They are neither legally binding nor governed by international law.
• Indeed - technically - we do not even regard them as 'agreements'.
• Such instruments simply embody their parties' understandings as to how they intend to conduct themselves in future.

What should be understood by the Australian agency negotiating the instrument of less than treaty status is that:

• Our constitutional practice does not require instruments of less than treaty status to be approved by the Governor-General or to be considered by parliament.
• Like treaties, these instruments do not have effect in domestic law unless implemented by legislation.
• Australia follows certain conventions regarding the kind of language that should be used in instruments of less than treaty status (in order to distinguish these instruments from treaties).
• These conventions include avoiding references to parties 'agreeing', imperative language like 'shall', etc.
• DFAT's Legal Branch is supposed to clear all instruments of less than treaty status to ensure that such language is used.
• Unlike treaties, DFAT's Legal Branch is normally not responsible for ensuring that:
• relevant ministerial approvals have been granted for either:
• commencing negotiations, or
• signing the finalised texts, or that
• the person signing such an instrument has authority to sign it, or that
• the foreign language version of the text (if there are different language versions of the text) accurately reflects the English language version of the text.

Deciding between a treaty and an instrument of less than treaty status

With a grasp of these elementary points an agency may decide whether or not it should use a treaty or an instrument of less than treaty status to achieve its aims.

Determining which kind of instrument to choose depends on the context of the negotiation, what you are trying to achieve with the instrument, and the substance of the instrument itself.

An instrument does not need to be legally binding if it is only intended to:

• record a meeting that took place (for example, as a ceremonial capstone to a senior officials' meeting or a ministerial meeting), or
• be a record of non-binding understandings reached between a number of countries (or a number of agencies from different countries) about a particular subject matter.

Instruments which are intended to be no more than a record of the common understandings of the parties regarding their future intentions, are usually - but not always - called Memorandums of Understanding (or MOUs for short).

But the situation is different where there is some reasonable desire on your part to ensure that if the other side fails to meet its commitments in the instrument, then there will be some way that we can enforce those commitments. In these cases you must consider whether the instrument needs to be legally binding.

It is important to bear in mind that:

• First, an instrument of less than treaty status is not legally binding, either under international or national law. There is no legal remedy if the other side doesn't keep its bargain.
• Second, there is no legal authority, to dictate to (or require from) - the legislature or the government of the parties to the instrument - that action must be taken due to the commitments in the instrument of less than treaty status.

That said, an instrument of less than treaty status does represent a political and moral commitment by its parties. So it should not be entered into lightly and all its parties should have the clear expectation that its terms will be honoured.

Nonetheless, these facts do not justify agencies resorting to instruments of less than treaty status (rather than treaties) as 'an easy way out'. Agencies say to DFAT: 'We want to sign this instrument quickly, and therefore we don't want to go through the delay and expense and paperwork and red tape and parliamentary scrutiny and other rigmarole that the treaty making process requires; so we want this instrument be a memorandum of understanding.' They might then add 'the fact that a few 100 million dollars of Australian trade will be directly regulated by this instrument is neither here nor there'.

Well, it doesn't work like that. If the instrument has substance within it which requires a legal commitment, it doesn't matter how fast you want to get it finished, it will have to be a treaty (or at least of treaty status) and consequently go through the treaty making process. So please be patient when you hear us insisting that a treaty (rather than an instrument of less than treaty status) is required.

And if we decide that a legally binding agreement is needed in a given case then there are constitutional limitations on how we must proceed. Under section 61 of the Constitution the power to make treaties is vested in the Queen and only exercisable by the Governor-General. No agency can circumvent or usurp this constitutional power of the Governor-General.

Language of Instruments

Having made this distinction between treaties and MOUs we must now look at the forms of language that the two kinds of instruments should have. Where you are proposing a treaty, the language in the treaty will usually manifest the parties' intention to be legally bound by that treaty. Conversely, with instruments of less than treaty status, there may be a risk that some of the parties might not realise that the instrument is not meant to be legally binding. Consequently, the form of words used takes on a critical significance; so you have to observe certain protocols and conventions about the way these instruments are drafted. (After I've finished this preliminary discussion of what kind of instrument to choose, I will go into these strict protocols that you need to observe when drafting instruments of less than treaty status.)

Now - whether or not you want a treaty or an MOU - a primary consideration in deciding how you want your instrument to be framed (and also what status it should be) is the identities of the parties. In Australian practice, only the Government of Australia signs treaties. So - if it's going to have legal status - it has to be signed for and on behalf of Australia or the Government of Australia. If the parties are intended to be government agencies or ministers (or even perhaps individual senior officials) that instrument, as far as we are concerned, cannot be a treaty.

Please note that we are purists in insisting that treaties should always designate states or governments (or international organisations) as their 'parties'. Numerous treaties between foreign governments have been signed by representatives of those governments for and on behalf of government departments; rather than for and on behalf of the governments themselves (Starke's International Law, 11 TH Ed, p 405). [Cf McNair, Law of Treaties, 2 nd Ed, pp 20-22 regarding the related issue of agreements between departments of different governments being treated as domestic contracts rather than treaties.] So don't be surprised if the country you are negotiating a treaty with is looking to have government departments as the parties to the treaty.

A second consideration for instruments being signed at the agency or ministerial level is whether the subject matter of that instrument is restricted only to the responsibilities of the agency or minister. Do they actually have responsibility for all the matters that are raised in that instrument? It sometimes happens that both treaties and instruments of less than treaty status are negotiated by a single department. But it turns out that the text will cover matters that really are relevant to some other agency. And it is surprising how often that is done without the consultation of that other agency. Indeed, sometimes without reference to any other element in the rest of the government.

Finally, the most critical factor regarding an instrument's status is whether the instrument is to cover matters that really do require a legal commitment. A legal commitment will be needed either because:

1. the other side has a domestic legal requirement (such as its constitution) that mandates a treaty; or
2. certitude is needed about the parties' actions; so a legal obligation to take such actions by either Australia or the other side is essential. (Legal activity might include getting funds, or passing laws.)

Form of the instrument

It is important not to confuse the form of an instrument with its content. The legal status of an instrument is not determined by the form it takes. Indeed, the better view is that even some oral agreements can be binding in international law. As early as 870 AD King Ludwig and Charles the Bold entered into an oral agreement which was considered binding on the international plane [K Widdows, On the Form and Distinctive Nature of International Agreements, AYBIL, Vol 7, p 117]. More recently, in 1992 it was reported that the Danish and Finnish Prime Ministers had a phone conversation in which they agreed that Finland would discontinue a claim in the International Court of Justice if Denmark paid Finland some money. [A Aust, Modern Treaty Law and Practice, p 7.] No written record was made of this conversation at the time; but it was - no doubt - legally binding. [Cf McNair, Law of Treaties, 2 nd Ed, pp 7-10.]

There seems to be a common misconception that an exchange of notes or an exchange of letters is - by virtue of those forms - an instrument of less than treaty status. Similarly, there is a fallacy that declarations and resolutions cannot be legally binding either. Contrariwise, there are myriad examples of treaties in the form of an exchange of notes or exchange of letters. In fact, most treaties to amend earlier treaties, are done in this form. And there are numerous examples of declarations which are legally binding. [Eastern Greenland Case (Denmark v. Norway) (1933) PCIJ Ser A/B No 53, cf Judge Dionisio Anzilotti's diss op; Nuclear Tests Case (Australia v France) ICJ Rep 1974 p 253 at pp 267-270, cf Judge Sir Garfield Barwick's diss op; Frontier Dispute Case ICJ Rep 1986, p 554 at p 573.]

Nor is the title determinative of an instrument's legal status. We, unfortunately, have in our treaty series a number of treaties which are titled 'Arrangements', and a small number of treaties (believe it or not) that are titled Memorandums of Understanding.

Drafting rules for instruments of less than treaty status

There are reasons why we have to be especially vigilant when it comes to the terminology in drafting an instrument of less than treaty status and in determining that the other side understands - completely - the status of the instrument.

The definition of a treaty is our cornerstone. A treaty is an agreement concluded between states and/or international organisations in written form, governed by international law, whether embodied in a single instrument or in two or more related instruments, whatever its particular designation. [Article 2 1 (a) Vienna Convention on the Law of Treaties (Vienna 23 May 1969); Article 2 1 (a) Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (Vienna, 21 March 1986, Not yet entered into force); S Rosenne, The Law of Treaties, pp 44-45; regarding the treaty making powers of international organisations, see DA Ijalaye, The Extension of Corporate Personality in International Law, pp 16-28 and Schermers & Blokker, International Institutional Law, pp 1096-1132.]

The particular legal element which gives rise to problems about what constitutes a treaty is the 'intent' of the parties: that is the intention that the instrument be governed by international law.

In international law, as in national law, there are certain formulae of words that indicate an intention to be legally bound. Those of you who are domestic lawyers will be familiar with the kinds of formulae that must be adopted in drafting affidavits, contracts, deeds and other instruments that indicate that an instrument has legal consequences. You may even be aware of the House of Lords Decision Garnac Grain Company v Faure & Fairclough [1978 2 All ER]. It was held in that case that where there is a legal relationship between parties which is unclear and that relationship can be characterised in different ways - which have very different legal consequences - then the terms used in an agreement between the parties may clarify the legal consequences of that relationship definitively.

There is an analogy with these formulae in international legal practice, and certainly in the case of Australian international legal practice. Except that - where instruments of less than treaty status are concerned - we focus on avoiding the use of certain terminology. It is our convention that - in avoiding the use of such terminology - we are indicating the parties' intentions that the instrument should not be legally binding.

For this reason, we are particularly strict about avoiding the use of terms which might imply that there is an intention to be legally bound.

Rather than give you a take-home bit of paper, I decided that it would be best to explain what this terminology is through a PowerPoint presentation. In this presentation we can review the points I have already mentioned by looking at texts which are full of errors.

I hasten to add that if I did issue you with a take-home bit of paper of these slide projections - replete with all the errors that they illustrate - then I fear that those hard copies might circulate around your department. And (with the effluxion of time) eventually be seen within your department as precedents (and relied upon as such).