In international relations, MoUs fall under the broad category of
treaties and should be registered in the
United Nations treaty collection. In practice and in spite of the
United Nations Office of Legal Affairs' insistence that registration be done to avoid 'secret diplomacy', MoUs are sometimes kept confidential. As a matter of law, the title of MoU does not necessarily mean the document is binding or not binding under
international law. To determine whether a particular MoU is meant to be a legally binding document (i.e., a treaty), one needs to examine the parties’ intent as well as the signatories' position (e.g., Minister of Foreign Affairs vs. Minister of Environment). A careful analysis of the wording will also clarify the exact nature of the document. The
International Court of Justice has provided some insight into the determination of the legal status of a document in the landmark case of
Qatar v. Bahrain, 1 July 1994.
Advantages One advantage of MoUs over more formal instruments is that, because obligations under international law may be avoided, they can often be put into effect without requiring legislative approval. Hence, MoUs are often used to modify and adapt existing treaties, in which case these MoUs have factual treaty status. The decision concerning ratification, however, is determined by the parties' internal law and depends to a large degree on the subject agreed upon. MoUs that are kept confidential (i.e., not registered with the UN) cannot be enforced before any UN organ, and it may be concluded that no obligations under international law have been created. Although MoUs in the
multilateral field are seldom seen, the transnational
aviation agreements are actually MoUs.
Examples Examples include: • The
Memorandum of Understanding Relating to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems on May 26, 1972 signed by the
United States (
Richard Nixon) and the
Soviet Union (
Leonid Brezhnev) updating the
Anti-Ballistic Missile Treaty • The
Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses between the US and
Cuba, meant to criminalize hijacking in both countries (February 3, 1973) • The agreement between the
Cayman Islands and
Cuba, under which Cayman immigration officers must give Cuban refugees two choices: disembark and be repatriated back to Cuba, or continue on their way with no help. • The
Agreed Framework between the U.S. and North Korea over nuclear weaponry on October 21, 1994 • The
Oil-for-Food programme, for which
Iraq signed an MoU in 1996 • The agreement between the government of
Indonesia and the
GAM in the
Aceh peace process, 15 August 2005. • The agreement between the
UK and
Jordan,
Libya and
Lebanon regarding potential extradition of suspects (commonly
terrorist suspects), who, if they are to be tried, must be tried fairly and in a manner similar to the
European Convention on Human Rights; for example, withholding from using evidence obtained through the use of
torture (Article 3). Such an understanding has been criticised for its inability to be legally enforced. This has been highlighted in the current deportation process of the suspected terrorist
Abu Qatada, who is wanted by Jordan in connection with a terrorist attack. However, at present, the Court of Appeal has rejected the UK Government's appeal based on the Court's concern of Jordan obtaining evidence potentially incriminating Qatada through the use of torture. • The
Memoranda of Understanding on Labour Cooperation between the
People's Republic of China,
Singapore and
New Zealand on 2008, in parallel with their respective free trade agreements • The
Under2 Coalition is a 2015 memorandum of understanding which sets
climate change mitigation goals for jurisdictions with over 1 billion residents. • On December 2, 2019, the
Michigan Department of Natural Resources and the
Saginaw Chippewa Tribal Nation signed an MoU to co-manage the
Sanilac Petroglyphs Historic State Park. The agreement marks the first state-tribal co-management of a Michigan
state park. == Examples ==