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Treaties

Australia’s practice for concluding less-than-treaty status instruments

This Guidance Note provides general guidance on Australia’s practice for concluding less‑than‑treaty status instruments with foreign governments. Any Commonwealth Government agency intending to enter into such an instrument should do so in consultation with the Department of Foreign Affairs and Trade’s International Law: Advising and Treaties Section (Treaties Section) and the relevant DFAT policy desk.

What is an instrument of less-than-treaty status?

An instrument of less-than-treaty status is intended to embody a political commitment without creating (of its own force) legal rights or obligations. As it is not binding under international law, an instrument of less-than-treaty status is not subject to Australia’s treaty-making process.

The most common form for an instrument of less-than-treaty status is a Memorandum of Understanding (MOU). Other forms include arrangements, exchanges of notes, letters recording understandings, records of discussion and joint communiqués.

Drafting and negotiating the text

Commonwealth Government agencies wishing to enter into an instrument of less-than-treaty status with a foreign government are responsible for drafting and negotiating the text, in consultation with DFAT’s Treaties Section and the relevant DFAT policy desk. Agencies should follow the guidance on language and key provisions below.

Language

To avoid any misunderstandings over the status of an instrument, it is important that the intention of the participants is clear. Whilst the intention of the participants is paramount in determining the legal status of an instrument, Australia’s practice is to use non-mandatory language in less-than-treaty status instruments. For example, under Australian practice, terms such as ‘agreement’, ‘agree’ and ‘agreed’ denote a treaty, while other terms, such as ‘arrangement’, ‘decide’ and ‘jointly determine’ denote an instrument of less-than-treaty status.

The table at Annex 1 contains further guidance on language suitable for use in instruments of less‑than‑treaty status.

Key provisions

Formal preambles should be avoided in instruments of less-than-treaty status, although informally phrased opening recitals may be appropriate.

Any provision for the settlement of disputes should be in terms of amicable resolution, rather than formal arbitration or any other form of binding dispute settlement.

Subdivisions of the instrument should be referred to as paragraphs rather than articles.

The instrument should be expressed to ‘come into effect’ rather than to ‘enter into force’.

The attestation clause should read ‘SIGNED at ..... on .....’, rather than ‘DONE at ..... on .....’.

A Model MOU including sample paragraphs for use in a less-than-treaty status instrument is at Annex 2.

Clearance

All instruments of less-than-treaty status must be sent to DFAT’s Treaties Section for clearance prior to signature. This clearance consists principally of ensuring there is no treaty language in the text of the proposed instrument and that it does not contain anything that would imply that the instrument is binding at international law.

Retention of original texts

Following signature of an instrument of less-than-treaty status, the relevant lead agency should retain the original signed version. DFAT’s Treaties Section does not maintain a collection of instruments of less-than-treaty status.

Contact us

International Law: Advising and Treaties Section
International Law Branch | Legal Division
Department of Foreign Affairs and Trade

Phone: (02) 6261 9479

Email: treaties@dfat.gov.au

Annex 1: Language for use in instruments of less-than-treaty status

Language for instruments binding under international law (i.e. treaties) Language for non-binding instruments (e.g. MOUs)

Agreement

Memorandum of Understanding

Arrangement

Joint Statement / Joint Communiqué

Exchange of notes/letters recording understandings

At the commencement of a treaty text a statement is made that the parties to the treaty:

have agreed as follows:

State that the participants:

have reached the following understanding:

enter into arrangements

Preamble

Informal opening recitals (avoid formal preambles)

Introduction

Background

Article

Paragraph

terms

provisions

clauses

Party

Participant

Partner

Government

enter into force

come into effect

come into operation

take effect

commence

continue in force

continue to have effect

remain in effect

shall

will

may not

will not

may only

will only

agree, agreement, agreed

mutually arrange

mutually decide

mutually consent

jointly determine

jointly decide

understanding of the Participants / Partners

accept

approve

decide

[legal] obligations

duties

commitments

undertakings

[legal] rights

advantages

benefits

have the right

may

be permitted to

arbitration

amicable resolution

peaceful resolution

Done at…on…

Signed at… on…

equally authentic

equally valid

Annex 2: Model MOU including sample paragraphs

MEMORANDUM OF UNDERSTANDING BETWEEN

THE GOVERNMENT OF AUSTRALIA

AND

THE GOVERNMENT OF [ ]

CONCERNING [ ]

The Government of Australia and the Government of [ ] (‘the Participants’),

Desiring to [ ];

Have reached the following understanding:

Paragraph 1

Purpose

The Participants will seek to [ ]

Paragraph 2

[heading]

The Participants will [ ]

Paragraph [ ]

Amendment

This Memorandum may be amended at any time by the mutual written consent of the Participants.

Paragraph [ ]

Termination

This Memorandum may be terminated by either Participant giving at least six months’ written notice to the other Participant. The Participants will consult to determine how any outstanding matters should be dealt with.

Paragraph [ ]

Disputes

Any disputes about the interpretation or application of the Memorandum will be resolved by consultations between the Participants, and will not be referred to any national or international tribunal or third party for settlement.

Paragraph [ ]

Duration and effect

  1. This Memorandum will come into effect on the date it has been signed on behalf of the Participants and will remain in effect until terminated in accordance with Paragraph [ ].
  2. This Memorandum represents the understanding reached between the Participants and does not create any legally binding rights or obligations.

Signed in duplicate at [place] on [date] in the English and [other language] languages, both texts having equal validity.

For the Government of Australia

For the Government of [ ]

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