Guidance on Non-Binding Documents
Ambiguity as to whether or not a document is legally binding should be avoided. When negotiating a nonbinding instrument, both/all sides should confirm their understanding that the instrument does not give rise to binding obligations under international law.
Certain formal, stylistic, and linguistic features tend to be associated with agreements binding under international law, while other features tend to reflect an intention on the part of the participants to produce an arrangement of a purely political nature. In order to avoid ambiguity, we offer the following general guidance:
• With respect to the title of a non-binding document, negotiators should avoid using the terms “treaty” or “agreement.” While the use of a title such as “Memorandum of Understanding” is common for non-binding documents, we caution that simply calling a document a “Memorandum of Understanding” does not automatically denote for the United States that the document is non-binding under international law. The United States has entered into MOU’s that we consider to be binding international agreements.
• We advise negotiators to avoid using the term “Parties” in non-binding documents. Rather, we encourage the use of other terms such as “Participants.”
• With respect to the actions to be taken, we advise that negotiators avoid terms such as “shall”, “agree”, or “undertake.” In many cases, we have urged that terms such as “should” or “intend to” or “expect to” be utilized in a non-binding document.
• We further advise that negotiators avoid use of the term “entry into force” and consider expressing that the document “is to come into operation” or that “activities are to commence” for the “participants.”
• We advise that negotiators avoid jurat clauses that state: “Done at” or “Concluded at”.
• While non-binding documents may be translated into different language versions, we advise that non-binding documents do not mention or reference the “equal authenticity” of different language versions.
• Finally, depending on the circumstances, it may be useful for a non-binding document to include a disclaimer in the text of the document expressly providing that it is not legally binding under international law.
United States practice on non-binding documents may differ from that of other countries. For example, the mere fact that a document is called a “Memorandum of Understanding” does not mean that the document automatically is considered non-binding for the United States. Also, for the United States, the use of the verb “will” in the text does not necessarily mean that the commitment at issue is not legally binding under international law. Because the use of the term “will” may lead to confusion as to the intention of the participants, the Office of Treaty Affairs generally recommends that this term be avoided in non-binding documents.
The Office of Treaty Affairs encourages agencies and offices to share the texts of proposed non-binding documents with the office, which is responsible by law for determining whether a particular document is a binding “international agreement” for purposes of reporting to Congress. Our determination is made on the basis of a number of criteria, including the identity and mutual intention of those entities involved, rather than simply the form or title of the document.