International agreements that do not have binding legal force

Abstract

The article examines the legal nature, specific features and systemic place in international law of agreements that do not have binding legal force (soft law instruments). The relevance of the topic is due to the rapid growth in international practice of declarations, memoranda and agreements of intent that are formally not subject to the mechanisms of international legal responsibility, giving rise to extensive scholarly debate on ways to ensure their effectiveness without legal coercion. The criteria for distinguishing informal agreements from classical treaties under the 1969 Vienna Convention are analysed. The key feature is the intention of the parties not to create legally binding rights and obligations, which in practice is reflected in specific vocabulary (the use of soft formulations such as «intend» or «will endeavour» rather than the obligatory «shall» or «commit»), the absence of domestic ratification requirements and the particular context of their conclusion. To systematise the phenomenon, an original classification of non-binding agreements is proposed: by the number of parties, by the level of conclusion, and by the degree of normativity. Particular attention is paid to ascertaining the true intention of the parties when concluding international documents. With reference to the practice of the International Court of Justice – in particular the landmark case Qatar v. Bahrain (1994) – it is demonstrated that the legal nature of a document is determined not by its title but by its objective content. Where states seek to preserve the political-declarative nature of an agreement, they must state this directly and unambiguously in the text; otherwise a real risk arises of the document being recognised as legally binding. The key factors underlying the popularity of soft law are examined: flexibility, speed of conclusion, avoidance of excessive juridification, confidentiality and the possibility of withdrawal in the event of changed circumstances. At the same time, critical shortcomings are identified, the most significant of which is the absence of effective enforcement mechanisms. As a paradigmatic example, the Budapest Memorandum of 1994 is analysed in detail. It is argued that the absence of binding force, the lack of sanctions mechanisms and its belated registration with the UN Secretariat (only in 2014, twenty years after signature) led to its complete ineffectiveness in the face of armed aggression against Ukraine, demonstrating the catastrophic consequences of using non-binding forms for fundamental security commitments. Despite the absence of direct legal effect, the article establishes that non-binding agreements occupy what Schachter termed a «twilight existence» and are not entirely outside the legal field. They operate under the general principle of good faith and reputational accountability, serve as agreed interpretations of existing treaties, and may form the basis for the emergence of new rules of customary international law.