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Similarly, we also have our own ability to set our own agenda.

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And so I've just I just finished one one term on the on the critical committee.

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We sit here, you can see the the the palace in Rio de Janeiro, where where we have the pleasure of meeting a non kova times.

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And the project got its origins when in 2016, the committee was meeting with Foreign Ministry legal advisers from various OAS member states.

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And a number of them kind of raised the question of whether the committee would take up kind of a set of problems that they were seeing.

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So Brazil in particular was asking about what do we do about M0 use memorandums of understanding, you know, how are we supposed to understand them?

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What is the practise? Are there are there particular rules for making them or identifying them?

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What sort of state legal status might they have in the like? A couple of other states kind of echoed that concern and then kind of added on top.

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I think it was Peru.

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And then Chile came in and said, well, we also want to talk or we want more information about what we call interinstitutional agreements,

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and that is agreements between institutions of states that are not done on behalf of the state itself necessarily.

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So you can think of what what we might call interministerial or inter-agency agreements when a Treasury Department of

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State A and Treasury Department of State B enter into an agreement or agreements amongst subnational territorial units.

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So when, you know, one of the states of Mexico purports to enter into an agreement with a Canadian province, say, or the like.

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And so, you know, the foreign ministry legal advisers kind of suggested that they were seeing an increasing practise on both fronts,

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that there's a rise in the conclusion of these sorts of agreements.

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And they asked for the committee to take up the topic.

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And I guess because I have that background, as mentioned, working on the extra guide to treaties, I was asked to be the rapporteur.

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And so, you know, we kind of embarked on a project to create guidelines on binding and non binding agreements.

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And I would say, you know, from the outset, the notion was that that there's a real value functionally in having flexibility in different types of

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agreement forms that states and their subnational territorial units and their agencies might pursue,

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both in terms of the speed with which some maybe concluded their flexibility and and their credibility.

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But at the same time, I think there's definitely a sense that there are challenges,

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particularly when you have unaligned expectations or unaligned practises about these sorts of agreements.

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And so the idea was, could we come up with some guidelines, definitions, best practises and the like?

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And so that that led to and I and I did not suggest anyone do this to seven reports on my part.

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You know, I was always kind of modelled after that place. You know, I think he did 14 on reservations and I used to joke about it.

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But I did seven very lengthy reports over the course of four years that culminated

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in a in a set of guidelines that the committee we approved this past August.

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I think they're made a bit of link on the website for this event.

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They are now available in, I believe, four languages, English, Spanish, French and Portuguese.

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And and as I suggested, the idea here is that these are voluntary guidelines.

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This is this is not a codification of international law project is, nor is it even an attempt to progressively develop the law.

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It's more in a world where we have different sets of practises.

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How can we improve transparency about what those different practises are and

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try and kind of find ways to navigate to avoid situations where states end up,

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you know, one state agree concludes and M.O. you thinking it's it's a legally binding treaty and another

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state thinks it's a non-binding political commitment and that produces problems internationally,

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maybe even a dispute or produces problems for one of the states domestically,

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because maybe it's domestic law requires the agreement to take a particular form or,

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you know, one form requires domestic procedures that the other doesn't and the like.

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You know, I'm seeing a list here.

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The you know, just by way of background, what went into this and maybe in the Q and A, we can we can talk about it a little bit.

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But it was you know, the project was it was a mixture of scholarly work on my part, but also formal consultations with the member states.

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So. Thirteen states ended up providing formal responses to my enquiries on the status of binding and non-binding agreements.

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I also had the good fortune to present it in several contexts in the United Nations, actually.

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And there in particular,

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there were some events hosted by Canada and Colombia in concert with the fiftieth anniversary of the adoption of the Vienna Convention on the law of

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Treaties that allowed me to get inputs from some non OAS member states on

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their treaty law and practises or their practises on all sorts of agreements,

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including Germany, Mexico, Korea, Spain and the like.

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All right. So I think the central thing that I tried to build this project around in which the rest

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of the committee joined me and in doing was that was the round the idea of agreement.

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And it's interesting when you actually think about it and you look at international law,

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the concept of agreement is pretty under conceptualised in in in international life.

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You know, if you go back to the Vienna Convention, all of treaties, Trevor O or the Isle sees work on the on the their draught law of treaties.

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And, you know, everybody uses the term, but it's rarely defined.

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And yet I do think that it kind of provides a central point of departure for for not just this project, but for how states might think about things.

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And the idea is, you know, first let's begin with do you have an agreement? All right.

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As opposed to just what you know, in diplomatic parlance, we call it deliverables.

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You know, sometimes when we used to meet in person, foreign ministry officials or others would get together and they'd say,

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you know, they produce pieces of paper to show that they'd had a meeting. But there's no agreement even even in those documents.

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And, of course, on the other end, you also have states unilaterally, occasionally deciding to issue statements or unilateral declarations,

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which, depending on the context, can have a can have some kind of some legal force in international law.

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And so the project begins with the idea that we are looking for mutual consent to some sort of commitment regarding future behaviour.

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Right. That's that's what we might think about agreements being defined as in the international space.

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So it has two elements, mutuality and commitment. So mutuality.

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We're talking about things here that are not unilateral.

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Not a unilateral declaration by a single state, but involve multiple states or multiple subjects of international law.

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And at the same time, they're are not that there is some normative component to it, some setting of expectations with regards to future behaviour,

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whether something that you are planning to do or something that you're planning not to do or something you might be permitted to do.

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And, you know, with that kind of compass definition of agreement as a point of departure,

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we get in then can look out into the international space and start to categorise agreements into different forms.

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As you can see here,

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I think the biggest division dividing line is those that are binding and they can be binding either as a matter of international law.

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That's the governing law called those instruments. Treaties are those agreements treaties or they can be governed by domestic law

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or what some of my private or national law colleagues called non-state law,

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you know, think about you need Dwar or the like. And those are contracts.

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So contracts are agreements binding under one or more domestic laws, treaties or agreements governed by international law.

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And then there's also the possibility of what we call what I call political commitments or non binding agreements,

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which have an international practise, been around for more than a century under various titles.

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You know, they were at a different time, you know, used under the gendered term gentlemen's agreements.

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But you also see, you know, informal agreements is another term that's frequent used.

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And the idea here is that there is an agreement, right. There's multiple entities coming together, committing to future behaviour.

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But the basis of the commitment is not drawing on law.

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It's drawing in something else. And that might be morality. You know, you keep your you keep your promises.

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It might be the politics in international relations where, you know, your your reputation or what have you drives your intent to follow through.

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But the idea is that it is outside the legal order.

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And I'm assuming that in the Q&A we might have a discussion as Young clobbers and I have often on now for well over a decade,

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you know you know, what is the theoretical basis for this political commitment concept?

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But I will tell you from the OAS perspective and the project's perspective that, you know,

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every single state that I heard from accepts this category of political commitments and increasingly relies on it that the states seem

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to find real value in having a category of agreements that are not legal in either a domestic law or in international law sense.

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To complicate things, what I found when I asked states and did my own research was that that concept of

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interinstitutional agreements that I mentioned at the outset is is is ambiguous.

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Right. What I found was that some states believe their institutions can do treaties.

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Some states said that. They can do contracts.

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Some states said they could only do political commitments and some member states that they could do all three.

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And so in some ways,

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that term interinstitutional agreement doesn't tell you very much because the entrenched institutional agreement might be a treaty.

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It might be a contract. It might be a little commitment.

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And so, you know, it's not enough to identify, you know, an agreement between two government ministries or two subnational entities.

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You have you're gonna have to dig further.

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And so part of what this project was designed to do was to to think about how how we might how we might do that.

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So I put up the link to the guidelines here, basically, that they have kind of six components.

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You know, first and foremost, I was trying to come up with some common definitions, like the ones I just kind of elucidated for you.

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You know, what are these types of binding and non binding agreements out there?

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Capacity who can make what types of agreements? So that is in the international space.

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Who are the treaty makers? Who can do political commitments, who can do contracts and the like?

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And how do we identify different agreement types? So what are the methods we might use to discern one type from from the other and procedures?

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What are the processes that states, particularly in the OAS region, were using?

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Well, to conclude their agreements. And what are the processes, if any,

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that in their institutions we're using to conclude these agreements internationally or transnationally, as it were?

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And what legal effects, if any, follow the conclusions of of an international agreement?

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And how do we think about them directly or indirectly? And where did these effects come from?

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And finally, the project, you know, we or I put together a set of steps to try and think about training and education,

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both within foreign ministries, but also across governments on these sorts of different categories,

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different procedures and different effects so that, you know, particularly in the region,

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but maybe beyond states and their representatives might have a better sense of being clear eyed as they go into when they're doing agreements.

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And if so, what kind of agreement they're doing and what the consequences for that might be.

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I should say at some point, you know, I recognise this this topic may be a little dry.

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So if anybody has questions as we're going along, I know we're going to do a Q&A at the end,

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but feel free to interrupt and you can just, you know, Zoom bombed me with a question if you feel like it.

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I'm happy to to try to field your questions now as well as at the end in terms of the capacity to conclude international agreements.

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You know, obviously, I started with the treaty. The easiest part of the work was that, you know, states have the capacity to conclude treaties.

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Indeed it is. It is.

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You know, maybe a cap, maybe a criterion of statehood are least indelibly linked to the idea that all states have the capacity to conclude treaties.

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Of course, you have to look at the treaty to see who that the treaty's terms may dictate.

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Further conditions on which states may enter and states themselves obviously may condition according to various procedures how they'll do so.

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But you know that that didn't seem to be too difficult a conclusion.

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And indeed, you see states doing treaty making, you know, both as states, Quast states, but also as governments.

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So I didn't really see a real difference between, you know,

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when the government of the United States concludes the agreement versus when the United States of America concludes the agreement.

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I think for our purposes, the more interesting question is, what about these state institutions?

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Right.

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Whether there are agencies, you know, a Commerce Department or, you know, the state of Pennsylvania or the Commonwealth of Pennsylvania where I live.

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How do we how do we regard those agreements?

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And what I found was that there are a number of states that that will regard those agreements as governed by

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international law and therefore meeting the definition of treaty as I as I used it in this in this in these guidelines.

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And that is basically all if the agreements governed by the national law. It's gonna be a treaty.

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And just because it's concluded by a non-state actor doesn't remove it from the treaty character.

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Did I hear somebody was trying to get him with a question? I'll use the moment to get a sip of coffee then.

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For the for these, you know, institutional actors, though, you know,

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I think there's some preconditions that states that will allow them to do treaties kind of impose.

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One is obviously they have to be competent in the matter that the treaty purports to address.

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So, you know, a tax ministry might, you know, might have the competence to exchange tax information with counterpart ministries overseas.

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But, you know, they're not going to be able to do exchange intelligence or military information.

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Beyond that, I think you want to see that the state itself has authorised this,

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say the subnational entity, or authorised its agencies to conclude conclude treaties.

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And some have done so. Know again, the United States in particular, authorises its agencies to conclude treaties in their own names and others.

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Dates like Mexico authorise their, you know, their states, their subnational territorial units to do so.

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And so you have to look and see, is there that capacity has been conveyed and some states will deny it.

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So a number of OAS member states, for example, do not accord their ministries the ability to enter into treaties,

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just as others do not accord their subnational territorial units the capacity to do so.

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And finally, the third kind of element is not just competence, not turn,

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not just internal authority to go off and make treaties, but external consent.

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And that is the potential treaty partners have to accept a willingness to do the treaty with us,

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you know, a state's institution instead of the state itself. And, you know, there are numerous examples of this, mostly bilateral.

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You know, you do have the unconventional of the sea, which allows for certain non-state actors to join in their own right.

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You have the kind of the customs union admission criteria for the WTO.

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But by and large, here we are talking about, you know, bilateral or maybe some plurilateral agreements where the question is, you know,

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will either state do an agreement with another state's institution, know the United States,

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for example, with Kobach, did an agreement on Social Security or what?

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You know, that interinstitutional agreement where two agencies or two subnational territorial units enter into a treaty?

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You know, I put up here international organisations. I'm happy to talk about it, but that was not really a focus of the project.

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But, you know, you know,

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it does expand on the notion that treaties are going to be defined by whether they're governed by international law more than who concludes them.

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And, you know, various subjects of international law can do so.

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I think when we come to contracts, you know, the capacity is going to be dictated by in some sense,

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first and foremost, the governing law of the contract. Right.

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If the contract purports to be governed by a particular state's domestic law, that that law will dictate what entities.

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That law recognises as having a contractual capacity. You know, for certain entities, state institutions and private actors, you know,

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they may be creatures of another domestic legal system which may condition what sorts of agreements they may conclude.

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But I think it was it was interesting to confirm that you that there are states that rule do contracts themselves.

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So interstate contracts remains a thing, you know, mostly on, you know, exchange of military,

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you know, purchase and sale of military equipment or engaging kind of in agreements on outer space.

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You know, activities and the like.

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And, you know, so a number of states will enter into contracts where they will agree that their own law or

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the other states law or some third states law will be the governing law of the contract.

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That's not universal. There are a number of states that seemed to say they did not have a practise of concluding contracts as a state,

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but almost all of them have allow their institutions to conclude contracts.

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And of course, private actors and others may do so as well in terms of political commitments.

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I think the flexibility of that form means that the capacity there really.

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I didn't find any limits on who might conclude them.

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You know, the I think the very appeal of a political commitment is that you're not worrying about legal personality,

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you're not worrying about capacity.

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And so you can have political commitments done amongst nation states, but they can also be done amongst state institutions.

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But they can also involve, you know, private actors and firms or kind of all three.

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And I think in my report, I cite the recent Paris call on trust and security in cyberspace,

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which has like nine founding principles and now a thousand signatories, including,

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I think sixty seven nation states, a number of subnational territorial units like the US states of Virginia and Colorado,

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but also firms like Facebook and Microsoft and. And so, you know, I think, you know,

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here the guidelines kind of recommend as best practises that states do more to both figure out and

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confirm that they've they've worked through the questions of capacity for their own institutions.

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And also being more public with other states and other state institutions about what their own capacities are and making

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sure that we don't have states or state institutions getting sideways with misunderstandings or misaligned expectations.

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The thing that I think generated the most interest and perhaps most controversy from member states is how do we identify the treaty,

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the contract, the political commitment, you know? And what are the methods for doing so?

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And as I suggested, the guy let's start with the proposition that first things first is make sure you have an agreement at all.

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Right. You know, distinguishing unilateral declarations,

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distinguishing statements that don't actually contain any commitment to future behaviour that will qualify as an agreement and then kind of ask,

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well, is it binding or not?

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And here, you know, drawing on both various literatures, but also the member state responses, there seems to be a priority,

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obviously, to look at the text as a way to identify the status of the agreement, but also to consider the surrounding circumstance.

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This is and to consider the subsequent practise.

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And I would note here a real divide between particularly a number of member states, but also the International Court of Justice.

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Between what I've called the intent test and the objective test and the intent test, it derives from the work of the IOC as well.

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You see it in their Treva for the Vienna Convention law of treaties.

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And this was the idea that we would be able to identify at least treaties by the intent of the states that make them.

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That is, if the states intend to make a treaty, it's a it's a treaty.

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If they do not intend for their agreement to be a treaty, then they can kind of deny it that status.

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So it's a subjective test, as it were. Whereas if you look at the court, I think, you know, beginning with Catarrh v. Bahrain,

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but also in kind of pulp mills and later cases where the court does not seem as concerned with subjective

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indicia or subjective manifestations of intent so much as the objective evidence of an agreement.

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And so that the Icee J. And as a result, a number of other member states have kind of said, look, we're not going to worry about subjectively.

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You know,

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do do all the participants agree that they had intended a treaty or did they all agree not to have a treaty but a contract or a political commitment?

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The idea would be that you would look at the text itself and say that the use of certain clauses,

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the use of certain language, is what's going to going to going to set the status of the agreement.

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And I think, you know, from a from a practical standpoint, you know,

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there are this is going to not be a huge problem and that both tests kind of tend to look at the same suite of materials.

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And so, you know, in many cases, they may lead to the same outcome.

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I think the challenge is when you have, say, a text that is objective indicia of, say, a treaty, but the surrounding circumstances cut the other way.

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You could see the tests leading in different directions. So, like, if you look at the South Side, the South China Sea arbitration,

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that arbitral tribunal said that it was following the intent test to decide whether

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certain agreements that China and the Philippines had entered into were binding or not.

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And, you know, it found evidence that they were they were not intended to be binding,

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both by by looking at surrounding statements that China or others had made, calling these instruments political documents.

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And yet the texts themselves often used words like agree and undertake that the ICJ has suggested ah ah ah indicative of a treaty.

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And so, you know, the challenge there. You have to ask if the South China Sea case had been before the International Court of Justice,

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would it have reached a different conclusion by applying the objective test because the surrounding circumstances pointed to a non treaty instrument.

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But, you know, objectively, just looking at that text, it suggested that there was, you know.

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So I think there is this concern that this that this potential kind of divergence of two states applying to different tests,

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leading to different results is out there. And there's been some some other concrete cases, particularly the 1980s.

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You know, there were a number of M0 use that the U.S. concluded with its commonwealth.

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Allies, including the United Kingdom, but also Australia and think Canada, that the Commonwealth countries said, oh, it's an M.O. you.

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It's non-binding and kind of just on the face.

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And the U.S. had always thought that its intention was clear, that they thought that these would be binding.

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And so, you know, they ended up having to kind of get back together and do a ship show agreement that was binding to clarify their status,

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because in the U.S. case, it needed those agreements to be binding as a matter of U.S. domestic law because it couldn't

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share certain military intelligence or other information in the absence of a binding agreement.

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So how do we how do we kind of bridge this gap?

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You know, one thing I said was, how about states be more explicit, you know, in the nonbinding context, with respect to political amendments,

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you often see something in the text of the political commitment that disavows its status as as a treaty.

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And, you know, that can be affirmatively disavowing it or kind of by implication,

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you know, the Helsinki Accords, for example, famously said, oh, you know what,

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all this sixty eight, whatever articles that precede this, you know, we're not registering this with the U.N., so don't infer that this is a treaty.

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When it comes to treaties, though, very rarely does one see that the party kind of explicitly indicating their intention to create a treaty,

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and I'm suggesting that, you know, they might think about doing so, particularly in the interinstitutional context,

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to make it clear to avoid the very sorts of, you know, cases that I was just describing.

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And one, you know, actually in contracts, Farmer often does see a governing law clause where,

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you know, the participants will select the governing law of the of the contract.

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So, you know, as the first order of business, the OAS guidelines suggest, you know, we could see we should see states doing more of this.

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But what if they don't? Here I tried to come up with this, I think was the, you know, four academics,

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probably not so interesting, but four member states, they were so excited about this.

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I've gotten such positive feedback. They you know, it's not like, you know, Tony Orce book or my work on this hadn't done this before,

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but they really liked having, you know, a list of what are the titles that point one way or another.

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Even though I should be fairly clear, the guidelines favour is a best practise, a holistic approach.

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You know, I am not a fan of magic words. Right. I don't think just because the text uses the verb shall,

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then that means you automatically have a binding agreement and you have to figure out whether it's binding under international law or domestic law.

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I mean, I think you can you can say we shall work towards and therefore take away whatever binding suggestions shall might have by,

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you know, additional language. And so, you know,

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I put this list up with the cautionary note that this these are things that are indicative but not determinative of an agreement status.

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But but looking across state practise, you know, there is this tendency, you know, if you're going to call, you know, calling something a treaty.

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The tendency is it's going to be a treaty, whereas, you know, at least, you know,

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arrangements or statements of intent will lean the other way, you know, and similarly,

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when you start to see verbs like should seek, expect and the like,

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that might be more indicative of a political commitment versus, you know, the showers, the musts, the dunnarts and the like.

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So in terms of, you know, international contracts, you know, I think the OAS, I should say,

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in my committee in particular, had done previously the year before my guidelines, guidelines on international contracts.

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So I can refer you to that.

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But, you know, was that states should use a governing law clause because there remains this question of when two states enter into an agreement.

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And it's clearly an agreement and it's clearly binding and it's silent as to governing law,

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should we presume that it defaults to international law or do we presume it defaults to domestic law?

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And I tend to personally favour the default to treaty laws.

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I do think a majority of scholars have looked at the question, do, although there's older work by James Fosset and others that would go the other way.

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And so here again, just as kind of a best practise, you know, the committee urges states that if you're going to do it, interstate contracts say,

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you know, the states should have a governing clause to make it clear that it's it's a state law,

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a domestic law, not our national law that will govern.

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And, you know, it can also be you know, it could be, you know, if the U.S. and Brazil are concluding a contract,

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as they've done, for example, on certain International Space Station cooperation.

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And like, you know, they could pick Brazilian law, they can pick U.S. law, but they could also pick,

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you know, Swiss law or even things like Lexmark atria or you need TOIS principles and the like.

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You know, as I said, I think the presumption should be that it's a treaty.

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But again, I'd emphasise these guidelines are not attempt to codify international law.

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A number of member states wanted it. Also, you know us to be clear that we weren't progressively trying to develop law.

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This is more literally just, you know, ways to avoid problems that states might might think about.

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So, you know, when I when I suggest there's a presumption, I don't mean to suggest that in a legal sense,

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but just more as a practical way for for how states and others might approach

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these issues in terms of avoiding the ambiguities and the fears that lead Brazil,

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Peru, Chile to propose this project. Obviously ex ante. Right.

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We could develop some different procedures for making binding non-binding agreements so that

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states and their institutions are much more clear upfront what direction they're heading in,

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that they're they are conscious when they're in the treaty lane versus when

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they're in the political commitment lane versus the contract lane and the like,

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and being more public about what capacities they regard their ministries, their agencies and themselves to to engage in.

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To be clear, you know, which states think that their provinces or regional governments can conclude treaties,

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can conclude political commitments in which think that those are off limits.

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And I think other states would benefit from from that.

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And I think from my part, the lawyer, the treaty draughting me says, you know, there's real opportunity, obviously,

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in the text of the instrument, the text of the agreement itself to be more explicit about what type of agreement is being contemplated.

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And I think one of the things that might also be useful is public registries, obviously,

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you know, under the UN charter states to register their treaties with the UN.

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I think if you talk to the U.N. treaty office, state practise remains mixed on that and certainly often delayed.

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But most nation states, I don't know all,

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but most nation states do have their own registry of what their treaty commitments are, and they are often quite public.

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What you don't see are similar registries of contracts or political commitments, although a number of states, I think principally Canada.

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But also I think Germany have begun to do so right.

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That they've begun to say we're not going to just catalogue what our treaties are, but we'll also catalogue our political commitments.

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And, you know, from my perspective, that's a welcome development.

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I'd say many years ago I was in the State Department treaty office in the U.S. government,

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and we would be very careful to say, you know, is this a treaty or is it a commitment?

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But once we decided it was a political amendment, you know, it got lucky if it ended up in a file or anywhere at all versus, you know,

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the treaties where we had a vault and a carefully curated collection, you know, including, you know, collecting the travel and the like.

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And I think the nature of political commitments, whether it's, you know,

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the Iran deal, which is back in the news, I guess, you know, in the near term or,

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you know, other major political commitments are the sorts of things that we might want to see some catalogues of in public registries for.

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And as I suggested, maybe, you know, more training of relevant officials, both in foreign ministries, but also in these institutions,

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because I think that's what a number of member states reported is that, you know,

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they had this problems where institutions were going off and doing unauthorised agreements in some in some way.

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And how do we know how do you rein them in after the fact? I think, you know, is this holistic approach that I've already described.

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Look at that text. You know, the actual language. Look at the final clauses.

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You know, I think the ICJ itself has said, look, if you have an entry into force clause,

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that's pretty indicative that it's a treaty, for example, or is there a termination or withdrawal clause.

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The absence of those clauses, though, may not be determinant, right. You know, the Vienna Convention,

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a lot of treaties has provisions on termination withdrawal precisely to cover cases where states don't put those conditions into the treaty itself.

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I think the surrounding circumstances leading up to the agreement's conclusion are also quite relevant.

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Are there contemporaneous statements saying the instrument was a political or voluntary or no mentions of domestic law or the like?

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And obviously the subsequent practise of the agreement participants is quite relevant in terms of how they characterise it or engage with it.

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Right. Do they register it at the United Nations? Does one or both register it?

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Do they know? What are the procedures if they amend it? How do they go about doing that?

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And the like? I think, you know, there've been a few cases where dispute resolution is used to resolve it.

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But I think where if, you know, if all of this fails, you know, that's where states should consider looking to some third party to help mediate,

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you know, a divergent set of views of what sort of agreement they've concluded,

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as it were, or or go ahead and terminate it or supplant it in some way, as I think I mentioned, the U.S. did with,

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you know, its Canadian, UK and Australian counterparts when it discovered one side thought there were non-binding.

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And I'll use the other sites that they were actually legally binding under international law. And we'll use the.

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The idea was let's let's, you know, come up with some sort of overarching framework to to to cover both sides interests,

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you know, the chateau agreement, as it was called, on procedures.

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You know, there's a tremendous diversity for how states authorise treaty making.

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I think one of the things I'd emphasise upfront was the committee's view.

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My view was that states will often decline to call something a treaty for domestic procedural purposes.

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That is a treaty under international law. So no executive agreements, congressional executive agreements, you know,

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basically things that either have no legislative oversight or or limited legislative inputs.

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You know, a number of states will say, oh, they're not.

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Treaties are treaties are only those that go to our Senate or that get certain approval out of our legislature.

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Those are domestic categories. But at the end of the day, if the.

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Regards the agreement is being governed by international law for purposes of this project.

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We treated it as a treaty and that diversity of procedures was such that I think, you know, the guidelines preach freedom.

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I mean, indeed, you know, you have the commonwealth approach where the state is authorised to all treaty making without any parliamentary oversight or

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involvement until such time as the United Kingdom wants to have it take some domestic legal form or have some domestic legal status,

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whereas other states kind of say you can't even conclude the treaty without that sort of legislative approval or consultation.

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I think one of the things I came away from thinking about this,

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particularly for at least maybe the most significant political commitments or interstate contracts that states should have,

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you know, procedures for authorising them. Some states already do.

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Columbia, for example, reported foreign ministry consultations and Foreign Ministry Legal Advisor Office signed off on political commitments,

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both to make sure that they're not treaties,

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but also to make sure that the political commitment aligned with the foreign policy interests of Colombia and its government.

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And as I've already suggested, you know, there could be more procedures to publicise or to create registries,

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not just of treaties, but of contracts and political commitments. So so registries for both binding and non-binding agreements.

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So kind of kind of winding down here. Let me talk a little bit about legal effects.

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I think, you know, when we talk about the legal effects of treaties with a group like this, you know, I think most of them are quite obvious.

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Obviously, you know, there's practise servanda the idea that international law creates primary obligations via treaty.

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What the treaty obliges you to do or not do or permits you to do that follows.

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I think the other thing that obviously, if you label something a treaty or qualifies as a treaty are the secondary legal effects.

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It triggers other legal regimes that apply.

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And of course, that includes the law of treaties. Right.

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So if you have a treaty, we can look to the law treaties for conditions on exit for what happens in the case of breach.

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What are the rules on formation or limitations there on reservations and the like?

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But also, you know, to the extent that we have something that's governed by international law,

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we trigger other areas like state responsibility or if it's a I o international organisation responsibility.

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If it's a treaty in a particular area on human rights, it may trigger a set of kind of, you know, regime specific set of legal effects.

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And of course, for some some states, particularly some of the OAS region, there'll be domestic legal effects that,

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you know, some treaties by their very conclusion will have the status of domestic law, whether equivalent to statutes,

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equivalent to just regulations, but not statutes or even, you know, in the OAS region,

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certain human rights treaties have constitutional effect and actually outweigh or equivalent to their constitutional provisions.

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Other states, there may be no legal effects domestically to a treaty contracts.

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You know, this is an international discussion group. I won't talk about contract legal effects in detail unless you want to in the Q&A.

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I think the big thing was the legal effects on political commitments was, first of all.

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That there are effects from following a political commitment or walking away from one.

381
00:38:56,950 --> 00:39:03,670
One only has to look, I think, at it, you know, house how the reactions, for example, to things like the Helsinki Accords over the years.

382
00:39:03,670 --> 00:39:09,640
And I like to see that, you know, political commitments can have significant reputational effects.

383
00:39:09,640 --> 00:39:17,050
All member states, though, disavowed the idea that a political commitment could create grounds for stoppable and

384
00:39:17,050 --> 00:39:20,650
that there could be no direct legal effects under national off or political commitments,

385
00:39:20,650 --> 00:39:25,570
something I think had been debated amongst scholars for a number of years.

386
00:39:25,570 --> 00:39:35,110
But that doesn't mean that they're not legally relevant. So, for example, political commitments can be a precursor to a treaty.

387
00:39:35,110 --> 00:39:38,710
You know, I think the Rotterdam convention is a good example of something that began as

388
00:39:38,710 --> 00:39:41,710
a political commitment that then states sat down and put it into a treaty.

389
00:39:41,710 --> 00:39:46,540
Form of political commitments at the international stage can take a domestic legal form.

390
00:39:46,540 --> 00:39:50,440
So the Kimberley Process on blood diamonds, non-binding internationally.

391
00:39:50,440 --> 00:39:58,540
But but domestically, a number of states have passed laws that put that political commitment into a binding form domestically,

392
00:39:58,540 --> 00:40:02,800
and they can also be a basis for interpretation. I think it's important to note, for example,

393
00:40:02,800 --> 00:40:07,150
that the recent work of the International Law Commission on subsequent agreements and

394
00:40:07,150 --> 00:40:12,640
subsequent practise noted that subsequent agreements for interpretive purposes can be binding.

395
00:40:12,640 --> 00:40:16,330
But they could also be non-binding so that political commitments can have legal

396
00:40:16,330 --> 00:40:22,540
relevance as a as a as a as an interpretive tool for other binding treaties,

397
00:40:22,540 --> 00:40:26,260
as it were. I think for inter and institutional agreements, again,

398
00:40:26,260 --> 00:40:31,630
it's really going to depend on what category you've decided that interinstitutional agreement is.

399
00:40:31,630 --> 00:40:39,310
But I think almost all the member states said that when you have an agreement amongst provinces or amongst ministries,

400
00:40:39,310 --> 00:40:45,860
the responsibility of the state as a whole is triggered. One, maybe two states kind of took a different view.

401
00:40:45,860 --> 00:40:53,590
Mexico actually has a domestic law that says that when its institutions conclude agreements governed by public international law,

402
00:40:53,590 --> 00:40:59,920
they are not putting the responsibility of Mexico as a whole on on on the line that it

403
00:40:59,920 --> 00:41:04,180
is only the institution that is responsible for those interinstitutional agreements.

404
00:41:04,180 --> 00:41:08,830
Another state has hinted that they think the law might be changing.

405
00:41:08,830 --> 00:41:13,630
So there is this potential that if we're seeing kind of these institutions having

406
00:41:13,630 --> 00:41:17,180
their own legal personality and concluding their own agreements that they might,

407
00:41:17,180 --> 00:41:19,140
you know, have their own responsibility.

408
00:41:19,140 --> 00:41:26,560
But but again, the majority of states that I heard from in this projects kind of preferred the articles of state responsibility Article four approach.

409
00:41:26,560 --> 00:41:31,690
That said, you know, the acts of an organ of the state will trigger the responsibility of the state as a whole.

410
00:41:31,690 --> 00:41:36,010
But again, I think it's really important for states to be aware that's not a uniform view.

411
00:41:36,010 --> 00:41:42,700
And that like, for example, if you're doing an institutional game with Mexico, you need to be aware of its views and maybe draught around it.

412
00:41:42,700 --> 00:41:47,260
Maybe the two states agree that, you know, that for purposes of that interinstitutional agreement,

413
00:41:47,260 --> 00:41:53,910
the state is the whole is on the hook or they agree to limit responsibility to the institutions themselves.

414
00:41:53,910 --> 00:41:58,260
You know, the training and education piece, I think is relatively obvious and maybe have less intellectual interests.

415
00:41:58,260 --> 00:42:05,440
So let me just put it up there. And I think I'm pretty much at a time I was told to kind of talk for 40 to 45 minutes.

416
00:42:05,440 --> 00:42:13,710
I think I'm there and hopefully, you know. So, you know, I haven't put you to sleep mid, mid or post lunch.

417
00:42:13,710 --> 00:42:19,210
But, you know, I you know, I think I really appreciate the opportunity to come talk about this project.

418
00:42:19,210 --> 00:42:23,830
Again, it was done for the member states of the OAS at their request.

419
00:42:23,830 --> 00:42:26,800
But obviously, as we got into this project,

420
00:42:26,800 --> 00:42:34,960
it was pretty clear that there is the global relevance of kind of trying to sort and define these categories and kind of both practically,

421
00:42:34,960 --> 00:42:40,480
but also conceptually thinking through what their legal effects would be, what procedures we might use and the like.

422
00:42:40,480 --> 00:42:44,860
So I hope it's of broader interest than it was in the region.

423
00:42:44,860 --> 00:42:52,300
And again, you know, you can get your you get your copies now free off the OAS website if it is the sort of thing you're interested in.

424
00:42:52,300 --> 00:42:59,470
So let me stop there and hope, fingers crossed that I've said something that will trigger you to two objector scream.

425
00:42:59,470 --> 00:43:03,220
I've already been yelled at about this project in various ways.

426
00:43:03,220 --> 00:43:10,060
You know, in earlier reports, I did try as as a rapporteur to reflect all the inputs that I could.

427
00:43:10,060 --> 00:43:14,950
So let me stop there. And I don't know whether I handle my own questions or if you will.

428
00:43:14,950 --> 00:43:19,690
Natasha Shatterhand want to want to moderate them for me. Let me know how you all prefer to do it.

429
00:43:19,690 --> 00:43:20,150
Thanks.