Memorandum of understanding
Encyclopedia
A memorandum of understanding (MOU) is a document
describing a bilateral
or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement. It is a more formal alternative to a gentlemen's agreement
.
In some cases depending on the exact wording, MOUs can have the binding power of a contract
; as a matter of law, contracts do not need to be labeled as such to be legally binding. Whether or not a document constitutes a binding contract depends only on the presence or absence of well-defined legal elements in the text proper of the document (the so-called "four corners"). This can include express disclaimers of legal effect, or failure of the MOU to fulfill the elements required for a valid contract (such as lack of consideration in common law jurisdictions).
U.S. law, MoU is a common synonym for a letter of intent
. One example is the MoU between Bush and Kerry for the 2004 debates iii.
In the United Kingdom, such an MoU is often called a concordat. An example is the 2004 Concordat between bodies inspecting, regulating and auditing health or social care
. The term is often used in the context of devolution, for example the 1999 concordat between the central Department for Environment, Food and Rural Affairs
and the Scottish Environment Directorate
.
and should be registered in the United Nations treaty database. In practice and in spite of the United Nations' Legal Section 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 or not a particular MoU is meant to be a legally binding document (i.e. a treaty), one needs to examine the intent of the parties as well as the position of the signatories (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.
MOUs that are kept confidential (i.e. not registered with the United Nations) cannot be enforced before any UN organ, and it may be concluded that no obligations under international law have been created. As was obvious in the Qatar v. Bahrain case, disputes may arise concerning the status of the document once one of the parties seeks to enforce its provisions.
Although MOUs in the multilateral field are seldom seen, the transnational aviation
agreements are actually MoUs.
Document
The term document has multiple meanings in ordinary language and in scholarship. WordNet 3.1. lists four meanings :* document, written document, papers...
describing a bilateral
Bilateralism
Bilateralism consists of the political, economic, or cultural relations between two sovereign states. For example, free trade agreements signed by two states are examples of bilateral treaties. It is in contrast to unilateralism or multilateralism, which refers to the conduct of diplomacy by a...
or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement. It is a more formal alternative to a gentlemen's agreement
Gentlemen's agreement
A gentlemen's agreement is an informal agreement between two or more parties. It may be written, oral, or simply understood as part of an unspoken agreement by convention or through mutually beneficial etiquette. The essence of a gentlemen's agreement is that it relies upon the honor of the parties...
.
In some cases depending on the exact wording, MOUs can have the binding power of a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
; as a matter of law, contracts do not need to be labeled as such to be legally binding. Whether or not a document constitutes a binding contract depends only on the presence or absence of well-defined legal elements in the text proper of the document (the so-called "four corners"). This can include express disclaimers of legal effect, or failure of the MOU to fulfill the elements required for a valid contract (such as lack of consideration in common law jurisdictions).
In private law
In privatePrivate law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
U.S. law, MoU is a common synonym for a letter of intent
Letter of intent
A letter of intent is a document outlining an agreement between two or more parties before the agreement is finalized. The concept is similar to a heads of agreement...
. One example is the MoU between Bush and Kerry for the 2004 debates iii.
Inside a company or government agency
Many companies and government agencies use MoUs to define a relationship between departments, agencies or closely held companies.In the United Kingdom, such an MoU is often called a concordat. An example is the 2004 Concordat between bodies inspecting, regulating and auditing health or social care
Concordat between bodies inspecting, regulating and auditing health or social care
The Concordat between bodies inspecting, regulating and auditing health or social care is a "voluntary agreement between organisations that regulate, audit, inspect or review elements of health and healthcare in England". It is made up of 10 objectives designed to promote closer working between...
. The term is often used in the context of devolution, for example the 1999 concordat between the central Department for Environment, Food and Rural Affairs
Department for Environment, Food and Rural Affairs
The Department for Environment, Food and Rural Affairs is the government department responsible for environmental protection, food production and standards, agriculture, fisheries and rural communities in the United Kingdom...
and the Scottish Environment Directorate
Environment Directorate
The Scottish Government Rural Affairs, Environment and Services Directorates was a group of civil service Directorates in the Scottish Government until a December 2010 re-organisation.The Environment Directorates reported to the Director-General, Paul Gray....
.
In Public international law
In international relations, MoUs fall under the broad category of treatiesTreaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
and should be registered in the United Nations treaty database. In practice and in spite of the United Nations' Legal Section 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 or not a particular MoU is meant to be a legally binding document (i.e. a treaty), one needs to examine the intent of the parties as well as the position of the signatories (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 be put into effect in most countries without requiring parliamentary 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 United Nations) cannot be enforced before any UN organ, and it may be concluded that no obligations under international law have been created. As was obvious in the Qatar v. Bahrain case, disputes may arise concerning the status of the document once one of the parties seeks to enforce its provisions.
Although MOUs in the multilateral field are seldom seen, the transnational aviation
Aviation
Aviation is the design, development, production, operation, and use of aircraft, especially heavier-than-air aircraft. Aviation is derived from avis, the Latin word for bird.-History:...
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 US President Richard NixonRichard NixonRichard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
and the USSR Successor StatesPost-Soviet statesThe post-Soviet states, also commonly known as the Former Soviet Union or former Soviet republics, are the 15 independent states that split off from the Union of Soviet Socialist Republics in its dissolution in December 1991...
updating the Anti-Ballistic Missile TreatyAnti-Ballistic Missile TreatyThe Anti-Ballistic Missile Treaty was a treaty between the United States and the Soviet Union on the limitation of the anti-ballistic missile systems used in defending areas against missile-delivered nuclear weapons.... - The agreement between the Cayman IslandsCayman IslandsThe Cayman Islands is a British Overseas Territory and overseas territory of the European Union located in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac, and Little Cayman, located south of Cuba and northwest of Jamaica...
and CubaCubaThe Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
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 Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses between the US and CubaCubaThe Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
, meant to criminalize hijacking in both countries (February 3, 1973) - The Agreed Framework between the U.S. and North Korea over nuclear weaponry on October 21, 1994
- The Oil for Food program, for which IraqIraqIraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
signed an MoU in 1996 - The agreement between the government of IndonesiaIndonesiaIndonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
and the GAMFree Aceh MovementThe Free Aceh Movement , also known as the Aceh Sumatra National Liberation Front , was a separatist group seeking independence for the Aceh region of Sumatra from Indonesia. GAM fought against Indonesian government forces in the Aceh Insurgency from 1976 to 2005, costing over 15,000 lives...
in the AcehAcehAceh is a special region of Indonesia, located on the northern tip of the island of Sumatra. Its full name is Daerah Istimewa Aceh , Nanggroë Aceh Darussalam and Aceh . Past spellings of its name include Acheh, Atjeh and Achin...
peace process, 15 August 2005. - The agreement between the UKUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and Jordan, LibyaLibyaLibya is an African country in the Maghreb region of North Africa bordered by the Mediterranean Sea to the north, Egypt to the east, Sudan to the southeast, Chad and Niger to the south, and Algeria and Tunisia to the west....
and LebanonLebanonLebanon , officially the Republic of LebanonRepublic of Lebanon is the most common term used by Lebanese government agencies. The term Lebanese Republic, a literal translation of the official Arabic and French names that is not used in today's world. Arabic is the most common language spoken among...
regarding potential extradition of suspects (commonly terrorists suspects) who if they are to be tried, must be tried fairly and in a manner similar to the European Convention on Human RightsEuropean Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, for example withholding from using evidence obtained through the use of tortureTortureTorture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
(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 QatadaAbu QatadaAbû-Qatâda al-Filisṭînî , sometimes called Abû-Omar is an Islamist militant. Under the name Omar Mahmoud Othman , he is under worldwide embargo by the United Nations Security Council Committee 1267 for his affiliation with al-Qaeda...
, who is wanted by Jordan in connection with a terrorist attack. However, at present, the Court of Appeal have rejected the UK Government's appeal based on their concern at Jordan obtaining evidence potentially incriminating Qatada through the use of torture. - The Memorandums of Understanding on Labour Cooperation between The People's Republic of China, SingaporeSingaporeSingapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
and New ZealandNew ZealandNew Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
on 2008, in parallel with their respective free trade agreements
External links
- Writing Guide for a Memorandum of Understanding Department of Homeland Security SAFECOM Program MoU Writing Guide.