Non-legally Binding Agreements in International Relations: An Estonian Perspective

Abstract

Legally non-binding international agreements branded as soft law generally receive little respect and are only rarely studied, yet they are becoming ever more common in international relations, stepping on the toes of the international treaty system. Estonia too is concluding memorandums of understanding (MoUs) more and more often and this Chapter gives an overview of its national views and practice. Estonian national legislation sets few limits to legally non-binding agreements, creating a flexible alternative for conducting diplomacy, and MoUs are beneficial especially for establishing contacts and setting out general areas of cooperation. However, procedural complexity seems to be only a small part of the reason why MoUs are often preferred to treaties – more often it is the lack of a legally binding nature itself that is appealing for the participants and such agreements are deemed binding by other means. A lot of effort goes into keeping MoUs clearly legally non-binding, using specific wording and specific terminology to distinguish them from treaties. Yet despite this distinction, MoUs can still affect the international treaty system by way of related interpretation and gradual development of state behaviour and customary international law. MoUs should therefore be drafted with thorough care and quality, in close cooperation with legal experts. A concept so heavily used with considerable effects should be studied and discussed rather than ostracized as simply not being part of the well-known treaty system under international law.