Non-Legally Binding International Agreements

Anastasiia Santalova

In recent decades, the use of non-legally binding international agreements has expanded significantly. This development has been accompanied by a growing number of legal issues that may arise in connection with them. Unsurprisingly, the topic has attracted increasing attention both in academic circles (see, for example, the Guidelines of the Inter-American Juridical Committee) and in State practice. Some States and international organizations have adopted internal acts governing procedures related to such agreements (see, for example, acts adopted in Russia and the EAEU, as well as those being developed in Slovenia and France). International courts and tribunals also encounter this issue. For example, the distinction between such agreements and treaties was considered by the International Court of Justice (ICJ) in its recent judgment in Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea).

The topic of non-legally binding international agreements was included in the programme of work of the International Law Commission (ILC) in 2023. Yet even the wording of the topic itself prompted lively debate. Given the considerable variety of such agreements (memorandums of understanding, letters of intent, joint declarations, etc.), as well as the terminology established at the national level (for example, Russia uses, among other terms, “international intergovernmental acts that are not treaties”), it was important to identify the most accurate common terminology. The advantages and disadvantages of the term “agreement”, as well as alternatives such as “instrument”, “act”, or “arrangement”, were discussed by States in the Sixth Committee of the UN General Assembly and by many ILC members. Following those discussions, it was decided, at least at the current stage of work, to retain the term “agreement”.

As the Special Rapporteur, Mr. Mathias Forteau (France), noted in his first report: “The fact that these agreements are not legally binding does not mean that international law is not likely to apply to them in some respects, or that they do not produce any legal effect.” Meanwhile, the purpose of the ILC’s work is not to transform non-legally binding agreements into legally binding ones, but rather to help States and other users distinguish them by providing the necessary practical clarifications.

At the 77th session of the Commission, Mr. Mathias Forteau presented his second and third reports. The consideration of two reports at a single session is not usual practice. The second report had already been briefly presented to the members of the working group on the topic at the 76th session in 2025. It contained introductory provisions, including issues of terminology and scope, provisions on distinguishing treaties from non-legally binding international agreements, and the first six draft conclusions (DCs) proposed by the Special Rapporteur. However, due to the UN funding crisis, the duration of the 76th session was shortened, and the consideration of the second report was postponed to the 77th session. This enabled States in the Sixth Committee, in autumn 2025, to comment on the draft conclusions before they were considered by the Commission in plenary and in the Drafting Committee, which departs from the usual procedure.

Against this background, the Special Rapporteur also presented his third report at the 77th session. The report summarized the views expressed by States in the Sixth Committee and by members of the working group at the 76th session, and analysed the ICJ judgment in Gabon/Equatorial Guinea, delivered during the first part of the 76th session. In addition, in the third report Mr. Mathias Forteau set out preliminary observations on a new aspect of the topic: the legal implications of the agreements under consideration.

Following the plenary meetings and discussions in the Drafting Committee at the 77th session, draft conclusions 1–5 were provisionally adopted on first reading. They covered the issues addressed in the six draft conclusions originally proposed by the Special Rapporteur. The results of the Drafting Committee’s work on the topic are reflected in the report of its Chair.

General Observations

As the Special Rapporteur confirms, the topic is generally sensitive and requires particular care to avoid any misunderstandings. Indeed, on the one hand, States noted the usefulness of working on this topic, especially given the increasing number of such agreements in contemporary practice. On the other hand, they approached this work cautiously, concerned about the possibility of regulating activity that appears, by its very nature, to be outside the legal realm. Both States and members of the Commission stressed the importance of striking a balance between preserving the flexibility of such agreements and ensuring sufficient legal certainty.

“What Are We Trying to Clarify?”, or the Purpose and Scope of the Draft Conclusions

Questions regarding understanding the purpose of the Commission’s work and conveying the right message to States became the subject of a lengthy discussion. DC 1, proposed by the Special Rapporteur and devoted to that purpose, was intended to dispel States’ concerns as far as possible, which explains its unusually detailed character.

Proposed by the Special Rapporteur:

Draft conclusion 1. Purpose

1. The present draft conclusions concern non-legally binding international agreements.

2. The present draft conclusions are not intended to be prescriptive. They are intended to provide elements of clarification with regard to non-legally binding international agreements.

3. The present draft conclusions do not affect the role played by non-legally binding international agreements in international cooperation, and the flexibility that characterizes their negotiation and adoption.

4. The present draft conclusions do not affect the binding force of treaties under the principle pacta sunt servanda or their regime.

Provisionally adopted by the Commission:

Draft conclusion 1. Scope and purpose

1. The present draft conclusions concern non-legally binding international agreements.

2. The purpose of the present draft conclusions is to provide elements of clarification in relation to non-legally binding international agreements.¹

 

¹ The Drafting Committee will revert to paragraph 2 at a later stage, in light of the work undertaken on subsequent draft conclusions.

DC 1 contained four paragraphs. They referred, in particular, to the non-prescriptive character of the draft conclusions and their aim of providing certain clarifications, and included reservations stating that the draft conclusions did not affect the flexibility of such agreements, their role in international cooperation, and the binding force of treaties.

Some ILC members criticized DC 1 for devoting considerably more attention to explaining what the Commission would not do than to defining the substance of its future work. In this connection, it was observed that DC 1 reflected a broader trend, both in relation to the present topic and in the Commission’s recent work in general, towards including numerous “without prejudice” clauses in its final products. The pervasive use of such clauses in the draft conclusions on this topic could suggest a tension with the stated non-prescriptive character of the provisions they contain. Finally, regarding the clause stating that the draft conclusions do not affect the binding force of treaties, it was noted that including such an obvious provision might itself create the impression that the Commission had doubts on the matter (a risk of interpretation per contrario). This point was made, for example, by Mr. Dapo Akande (United Kingdom) and Ms. Alina Orosan (Romania).

The Drafting Committee ultimately decided to move some of the additional explanations to the commentary, retaining only the first two paragraphs in the text of the DC.

In the view of several members, the Commission generally seeks to provide clarification anyway. It was therefore particularly important, in the context of this topic, to determine precisely what kind of clarification was contemplated in para. 2 of DC 1. Does this refer to the identification of non-legally binding international agreements, their distinction from treaties, their legal implications, or the practice of their use?

It was decided that the necessary explanation of these “elements” would be provided in the commentary to the DC 1 in the light of the Commission’s future work on the topic. The possibility of revisiting the wording of the scope at a later stage   —to this end, a corresponding footnote was added to para. 2.

As for the phrase “elements of clarification” itself, although some members of the Commission considered it insufficiently clear, the Drafting Committee concluded that it would convey to States and international organizations the non-prescriptive character of the draft conclusions. For these reasons, among others, the Drafting Committee rejected such an alternative formulation as providing “clear guidance”.

DC 1 also illustrates the Commission’s close attention to differences between language versions. The original French title, “objet”, encompasses both the purpose and the scope of the draft conclusions, whereas the term “purpose”, initially proposed in the English version, does not fully reflect the nature of DC 1. Following lengthy discussions, the English title was therefore changed to “scope and purpose”.

Yet Another “Without Prejudice” Clause?

DC 2 is based on a “without prejudice” clause concerning rules or practices applicable at the national level, originally proposed as DC 4. It was noted that it is unusual for the Commission to include such a clause with respect to national practices, since its work is likely, in one way or another, to influence them.

Proposed by the Special Rapporteur:

Draft conclusion 4. Without prejudice clause to rules or practices applicable at the national level

The present draft conclusions are without prejudice to any rules or practices applicable at the national level in relation to non-legally binding international agreements.

Provisionally adopted by the Commission:

Draft conclusion 2 [4]. Rules or procedures followed by States and international organizations

The present draft conclusions do not affect rules or procedures followed by States and international organizations in relation to the drafting and adoption of non-legally binding international agreements.

The members of the Drafting Committee decided to use the more neutral formulation that the draft conclusions “do not affect” rules or procedures followed by States and international organizations (consensus on also referring to international organizations was reached fairly quickly) in relation to the drafting and adoption of the agreements under consideration. DC 2 thus reflects the understanding that the Commission’s work should be seen as complementing existing practice rather than seeking to change it.

Among other key proposals, discussions also focused on wording to the effect that the outcome of the Commission’s work would not affect the right of States and international organizations to establish or follow internal rules and procedures, as well as the possible inclusion of the period after agreements have been drafted and adopted, in particular their interpretation and application, which may likewise be subject to internal rules and procedures.

I found it particularly interesting that, in deciding to include this provision in the text as a separate DC, the Commission was also guided by practical considerations. In particular, this approach makes it possible to include examples of national practice in the commentary to the draft conclusion, obtain comments from States and international organizations, and, if necessary, revisit the provision in the light of those comments. In addition, since not all users have the time to read the commentaries, the Commission considered it preferable to include the clarification directly in the draft conclusions.

Use of Terms

New DC 3 combined elements of DC 2 and DC 3 proposed by the Special Rapporteur.

Proposed by the Special Rapporteur:

Draft conclusion 2. Use of terms

1. For the purposes of the present draft conclusions, the term “non-legally binding international agreement” is used in a general sense to refer to any mutual commitment entered into at the international level which, as such, does not create any rights or obligations or has no binding legal effect.

2. …

Draft conclusion 3. Scope

1. The present draft conclusions cover bilateral and multilateral agreements:

(a) in writing;

(b) of an international nature;

(c) between States, States and international organizations or between international organizations.

2. …

Provisionally adopted by the Commission:

Draft conclusion 3 [2, 3]. Use of terms

1. For the purposes of the present draft conclusions, the term “non-legally binding international agreement” is used to refer to any agreement made in writing between States, between States and international organizations, or between international organizations, whether bilateral or multilateral, which, as such, does not create any rights or obligations, or have other binding legal effects, under international law.

2. …

3. …

Paragraph 1 defines the term “non-legally binding international agreement” by reference to three elements:

• first, “any agreement made in writing”. Although the original proposal referred to a “mutual commitment”, the members of the Drafting Committee decided to follow the logic of article 2 of the Vienna Convention on the Law of Treaties and not define the term “agreement” itself. At the same time, the Commission should not create the impression of establishing a separate legal regime parallel to that of the law of treaties. This is important in light of States’ desire to avoid creating new rules that could result in a loss of flexibility and effectiveness of less formalized types of agreements;
• second, as regards the participants, such an agreement is made “between States, between States and international organizations, or between international organizations” and may be bilateral or multilateral. This wording narrows the originally proposed and insufficiently clear category “entered into at the international level”. Its relationship with the concept “of an international nature” was also unclear. Although it was assumed that private-law contracts between States and international organizations should remain outside the scope of the draft conclusions, as Mr. Evgeny Zagaynov (Russia) and Mr. Xinmin Ma (China) noted in plenary, the original wording could have caused confusion;

• third, such an agreement “as such, does not create any rights or obligations, or have other binding legal effects, under international law”. This is the key element of the definition, distinguishing such agreements from treaties. The qualification “as such” is important because the absence of binding legal force does not preclude an agreement from having certain legal implications (for example, reflecting subsequent practice in relation to interpretation of treaties). The Special Rapporteur intends to examine those implications in greater detail and propose corresponding draft conclusions in his next report. The Drafting Committee also decided to add the words “under international law”, since such agreements may have consequences under domestic law.

With respect to the third element, it is noteworthy that such agreements, without altering their legal nature, may refer to existing obligations under international law while not creating new ones. This point was made, for example, by Mr. Hong Thao Nguyen (Viet Nam) and Mr. Xinmin Ma. The Special Rapporteur on the topic of prevention and repression of piracy and armed robbery at sea, Mr. Louis Savadogo (Burkina Faso), also provided interesting examples: Yaoundé Code of Conduct and Jeddah Amendment to the Djibouti Code of Conduct expressly state that they are non-legally binding, except for one specific provision concerning mutual assistance and consultations, respectively. This clarification is particularly important in light of Singapore’s comment that non-legally binding international agreements may contain certain legally binding provisions (although no examples were provided). While Mr. Mathias Forteau noted in his third report that the presence of such provisions automatically turns agreements into treaties, in light of the examples raised during the plenary discussions he emphasized that he would address such exceptional cases in the commentary.

Paragraph 3 is intended to reassure States that the use of the term “agreement” in the draft conclusions “does not affect” the meaning given to that term in other contexts.

Proposed by the Special Rapporteur:

Draft conclusion 2. Use of terms

1. …

2. The use of the term “agreement” in the present draft conclusions is without prejudice to:

(a) the use of this term and the meaning which may be given to it in the internal law or the practice of a State;

(b) the meaning given to this term in any specific international instrument.

Provisionally adopted by the Commission:

Draft conclusion 3 [2, 3]. Use of terms

1. …

2. …

3. The use of the term “agreement” in the present draft conclusions does not affect:

(a) the meaning which may be given to this term in the internal law or the practice of a State or in the rules or the practice of an international organization;

(b) the meaning given to this term in any international instrument.

The need for this provision is justified, among other things, by the lengthy discussions concerning the choice of an appropriate term for the topic as a whole.

The Mysterious Sub-State Authorities

With respect to para. 2 of DC 3, given the extensive practice in this area, the Special Rapporteur proposed including within the scope agreements entered into by sub-State authorities at the international level. This provision became the subject of lively discussion both in plenary and in the Drafting Committee.

Proposed by the Special Rapporteur:

Draft conclusion 3. Scope

1. …

2. Agreements entered into by sub-State authorities are covered by the present draft conclusions to the extent that they are adopted at the international level.

Provisionally adopted by the Commission:

Draft conclusion 3 [2, 3]. Use of terms

1. ...

2. The term “non-legally binding international agreement” under paragraph 1 includes, in relation to States, agreements entered into by organs of the government, territorial units and agencies or instrumentalities of the State which may enter into such agreements.

3. …

The first question was whether the scope should cover only agreements entered into by central government authorities, which are generally empowered to represent the State internationally, or whether it should also extend to agreements entered into by administrative and local authorities that lack such powers but in practice enter into numerous non-legally binding agreements with foreign authorities (for example, town twinning arrangements).

The first option is reasonable because it is agreements of central authorities that may potentially be confused with treaties. They could therefore be treated as agreements entered into by “States” within the meaning of para. 1, making para. 2 unnecessary. The concerns expressed by Ms. Alina Orosan and Mr. Dapo Akande regarding agreements of administrative and local authorities were also based on the possibility that their legal implications might be different in nature.

However, given the prevalence of such practice, the second option was chosen. To avoid the unclear expression “sub-State authorities”, the relevant categories of entities were identified more specifically as “organs of the government, territorial units and agencies or instrumentalities of the State which may enter into such agreements”. This wording was preferred to a direct reference to their power to enter into agreements “in accordance with the domestic law of the State”, because many States lack specific regulation in this area, while the relevant authorities in practice enter into numerous such agreements without expressly conferred statutory powers or specific authorization.

Where Is the Line After All?

In considering the draft conclusions, the Commission repeatedly returned to its intention to achieve the most practically useful outcome. Some of its members emphasized that the final product would be used not only by legal specialists. What are the expectations of future users? Presumably, the main expectation is to obtain some guidance on distinguishing legally binding from non-legally binding international agreements. As the Special Rapporteur noted, the choice of the latter as the subject of the Commission’s work was largely prompted by their similarity to treaties. The relevance of this issue has been reaffirmed in very recent practice: the distinction between them became an issue in the arbitration between Rwanda and the United Kingdom under the Asylum Partnership Agreement. The award was rendered during the ILC’s plenary sessions on this topic.

The part following the introductory provisions — DCs 4 and 5 — is devoted precisely to this distinction.

Discussing these draft conclusions, many members of the Commission referred to the ICJ judgment in Gabon/Equatorial Guinea, analysed, as noted above, by Mr. Mathias Forteau in his third report. Some members, however, urged caution in applying the Court’s findings too broadly to the present topic, as the central question in that case was whether the “Bata Convention” was a treaty or merely a draft treaty. This point was made, in particular, by Ms. Penelope Ridings (New Zealand), Mr. George Rodrigo Bandeira Galindo (Brazil), and Mr. Rolf Einar Fife (Norway).

Both in plenary and in the Drafting Committee, particular attention was paid to the question of whether DC 4 should be confined exclusively to non-legally binding international agreements and, thus, should not encroach on the domain of treaties. However, since participants may intend an agreement to be either legally binding or non-legally binding, it was decided to retain the wording “whether an international agreement is legally binding or not” and “the intention … to be or not to be legally bound”.

Proposed by the Special Rapporteur:

Draft conclusion 5. Assessment of whether an agreement is legally binding or not

1. Whether an agreement is legally binding or not is assessed on a case-by-case basis.

2. Whether an agreement is legally binding or not depends on the intention of the parties to the agreement. In the absence of any intention by the parties to be legally bound by the agreement, it is not legally binding.

3. The intention may be expressly stated.

4. In the absence of any express indication, intention can be established by recourse to the relevant elements identified in draft conclusions [No. XX to XX]. These elements are assessed as a whole.

Provisionally adopted by the Commission:

Draft conclusion 4 [5]. Assessment of whether an international agreement is legally binding or not

1. Whether an international agreement is legally binding or not depends on the intention of the participants thereto. In the absence of an intention of the participants to be legally bound by the agreement, it is not legally binding.

2. The intention of the participants in the agreement to be or not to be legally bound may be expressly stated.

3. In the absence of such an express indication, the intention of the participants in the agreement to be or not to be legally bound can be established by recourse to the relevant elements identified in draft conclusions [… to …].2 These elements are assessed as a whole.

4. Whether an international agreement is legally binding or not is assessed on a case-by-case basis.

² To be finalized at a future session.

Both States in the Sixth Committee and members of the Commission confirmed the central role of the participants’ intention in determining whether an international agreement is legally binding or not (paras 1–3), as well as the need to make an assessment on a case-by-case basis (para. 4).

A significant change in paragraph 1, which establishes the general framework for the importance of intention, was the replacement of “any intention” with “an intention”. This served to emphasize that an agreement is non-legally binding precisely in the absence of a common intention of the participants to assume legal obligations. Establishing such a common intention may nevertheless be difficult in practice, for example where there are indications that the participants’ intentions diverge or where the agreement itself contains conflicting provisions. The situation becomes even more complex in the case of so-called “evolving intent”, as pointed out by Ms. Nilüfer Oral (Türkiye) and Ms. Patrícia Galvão Teles (Portugal).

Intention may be expressly stated (para. 2) or, in the absence of such an express indication, established through an overall assessment of the relevant elements (para. 3). As Mr. Charles Chernor Jalloh (Sierra Leone) emphasized, these elements are not separate criteria alongside intention; rather, they help to establish intention. Draft conclusions on those elements will be proposed by the Special Rapporteur next year and are expected to take the form of an indicative, non-exhaustive, and non-prescriptive list. ILC members also noted that such elements may be taken into account both when interpreting an agreement already entered into and before or during the relevant negotiations.

An Express Indication is Sufficient — or Not?

DC 5 addresses a specific situation when an agreement contains an express indication that it is not legally binding.

Proposed by the Special Rapporteur:

Draft conclusion 6. Existence of an express indication

The fact that all the parties to an agreement expressly indicate that it is or it is not legally binding under international law is sufficient to identify their intention.

Provisionally adopted by the Commission:

Draft conclusion 5 [6]. Express indication of intention

The fact that an international agreement expressly indicates that it is not legally binding under international law is normally sufficient to identify the intention of the participants thereto.

This draft conclusion is particularly important given the increasingly widespread practice of including such provisions, which considerably simplify the determination of whether the agreements concerned are legally binding. Mr. Mathias Forteau emphasized that having a separate draft conclusion indirectly encourages the further development of this practice and also makes it possible to provide, in the commentary, examples of specific provisions that can serve as guiding reference for States and international organizations.

It was decided to state that the existence of an express indication is “normally sufficient” to identify the intention of the participants to the agreement. This wording emphasizes the considerable and, in most cases, decisive weight of an express indication without automatically excluding legal analysis of other elements. There may be situations in which other provisions of an agreement, for example dispute settlement clauses, contradict an express indication that the agreement is not legally binding. It was noted that the mere inclusion of such a provision should not give participants carte blanche, especially given that agreements are often drafted by non-lawyers.

The question whether an express indication that an agreement is not legally binding gives rise to a presumption of its non-legally binding character proved controversial. Some members of the Commission considered that such a presumption existed, while others noted that it would be inconsistent with assessing the elements of an agreement as a whole (DC 4), or expressed broader concerns about presumptions as such. It was also emphasized that the absence of a provision expressly stating that an agreement is non-legally binding does not, by itself, justify the conclusion that the agreement is legally binding. The commentary will clarify both the absence of a possible presumption and the weight to be accorded to an express indication.

Legal Implications of Non-Legally Binding Agreements

During the plenary discussions, members called for caution in addressing the potential legal implications of non-legally binding international agreements. Some members of the Commission observed that the very idea of legal implications arising from non-legally binding agreements is, in a sense, paradoxical; this is reflected even in the terminological tension inherent in the phrase “legal implications of non-legally binding agreements”. Others, however, emphasized that such agreements do not exist in a legal vacuum: the absence of legally binding force does not mean the absence of legal implications at all (although their existence does not alter the legal nature of the agreements).

This refers, for example, to the interpretative function of such agreements, their role in the formation of customary international law, and their use as an intermediate step towards the conclusion of a treaty. More cautious views were expressed, however, regarding the possible application of estoppel in connection with a position expressed in such agreements, as well as the implications of applying the principle of good faith to them.

Mr. Bimal N. Patel (India) urged particular caution in considering the issue of intention and legal implications of agreements entered into during the colonial period or in post-colonial times, noting that participating in some of them had been the “price of independence”.

Thus, a more substantive discussion of some of the most interesting and, probably, most controversial draft conclusions on the topic is expected next year.