Strasbourg
26 March 2021

An Expert Workshop on Non-Legally Binding Agreements in International Law, organised by the German Federal Foreign Office and the University of Potsdam in the framework of the German Chairmanship of the Committee of Ministers of the Council of Europe, was held on Friday 26 March 2021, on the occasion of the 60th CAHDI meeting.

Non-legally binding agreements in international law enjoy an ever-increasing significance in the everyday relations between States. However, neither does a consensus exist among practitioners and academics as to what exactly constitutes such non-legally binding “agreements”, nor is a uniform practice on the part of States recognisable. Due to the widespread use of such instruments, this incoherent picture can lead to misunderstandings and thus to possible (legal) arguments. Therefore, this Workshop purported in two discussion panels to edge closer to finding answers to the questions of how to distinguish non-legally binding from legally binding agreements and whether such instruments, despite their intended non-legal character, might produce legal effects, as well as what conclusions can be derived from contemporary State practice regarding the use of these instruments.

Furthermore, this Workshop provided an opportunity for an informal discussion among legal advisers on the status of non-legally binding agreements in international law and can offer a platform for an exchange of views on whether developing a more uniform practice among States concerning non-legally binding agreements is relevant and desirable.

CONCEPT NOTE

PROGRAMME

CHAIR'S SUMMARY

Interventions

  • Dr Christophe Eick, LL.M., Legal Adviser, Federal Foreign Office, Germany

Welcome and opening remarks

  • Mr. Miguel de Serpa Soares , Under-Secretary-General for Legal Affairs and United Nations Legal Counsel

Statement


Panel 1: Treaties versus non-legally binding agreements

Chair: Ms Alina Orosan, Romania, Chair of the CAHDI

  • Mr Philippe Gautier, Ph.D. , Registrar of the International Court of Justice

Presentation Memoranda of Understanding” – Mere political commitment or a well-established category of international treaty law? (What distinguishes a legally binding from a non-legally binding agreement?)

Statement Memoranda of Understanding” – Mere political commitment or a well-established category of international treaty law? (What distinguishes a legally binding from a non-legally binding agreement?)

  • Prof. Dr. Andreas Zimmermann , LL.M. University of Potsdam

Presentation Non-legally binding but still legally relevant? – Possible indirect legal effects of non-legally binding agreements

Statement Non-legally binding but still legally relevant? – Possible indirect legal effects of non-legally binding agreements

  • JUDr. Petr Válek, Director, Department of International Law, Ministry of Foreign Affairs, Czech Republic

Perspectives in practice: A legal adviser’s experiences with MOUs


Panel 2: Towards uniform State practice concerning non-legally binding agreements: Relevant and desirable?

Chair: Dr. Helmut Tichy, Austria, Vice-Chair of the CAHDI

  • Prof. Dr. Duncan Hollis Temple University

Statement An American perspective: The OAS experience

Guidelines An American perspective: The OAS experience

  • Dr. Jörg Polakiewicz , Director of Legal Advice and Public International Law, Council of Europe

An European perspective: The experience of the Council of Europe

  • Ms Kaija Suvanto , Director General Legal Services, Ministry for Foreign Affairs, Finland

Perspectives of States

  • Dr Christophe Eick, LL.M., Legal Adviser, Federal Foreign Office, Germany

Concluding remarks and farewell