Brussels, 10 January 2022

WK 227/2022 INIT

LIMITE

COJUR

This is a paper intended for a specific community of recipients. Handling and

further distribution are under the sole responsibility of community members.

INFORMATION
From: General Secretariat of the Council
To: Working Party on Public International Law
Subject: NL MoU guide

Dear COJUR members,

Please find attached an updated and translated version of MoU guide from the Netherlands.

Kind regards.

COJUR Seretariat

WK 227/2022 INIT
LIMITE EN
 MEMORANDA

OF

UNDERSTANDING

Ministry of Foreign Affairs

Legal Affairs Department
International Law Division

October 2021
CONTENTS
1. INTRODUCTION ............................................................................................................................................................ 3
2. ROLE OF THE MINISTRY OF FOREIGN AFFAIRS ............................................................................................... 4
3. WHEN IS IT POSSIBLE TO CONCLUDE AN MOU? ............................................................................................ 5
4. THE DRAFTING OF AN MOU ..................................................................................................................................... 7
4.1 Intention, content and form .............................................................................................................................. 7
4.2 Content ...................................................................................................................................................................... 7
4.3 Form ............................................................................................................................................................................ 8
4.3.1 Title .................................................................................................................................................................... 8
4.3.2 Signature .......................................................................................................................................................... 8
4.3.3 Text .................................................................................................................................................................... 8
4.3.4 Form of the arrangement ................................................................................................................................ 8
4.4 Intention of the signatories................................................................................................................................. 8
5. CONTENT AND CONSEQUENCES OF THE CHECK BY DJZ/IR ....................................................................... 9
6. PRACTICAL POINTS................................................................................................................................................... 10
6.1 Interministerial coordination ............................................................................................................................ 10
6.2 Relations within the Kingdom........................................................................................................................... 10
6.3 Signature ................................................................................................................................................................. 10
6.4 Submission of an MOU to the cabinet ........................................................................................................... 10
6.5 Provision of information about or text of an MOU to parliament ........................................................ 10
6.6 Languages, texts and arrangements for signing ...................................................................................... 11
6.7 Publication .............................................................................................................................................................. 11
ANNEXES ..................................................................................................................................................................................... 12
ANNEX I - CHECKLIST ........................................................................................................................................................ 12
1. Preparation .............................................................................................................................................................. 12
2. Has DJZ/IR been contacted about this through your own legal department? ............................... 13
3. Negotiations ............................................................................................................................................................ 13
4. Completion .............................................................................................................................................................. 13
ANNEXE II – THE TERMINOLOGY OF MEMORANDA OF UNDERSTANDING..................................................... 14
Expressions and provisions that can cause memoranda of understanding to be confused with
treaties ................................................................................................................................................................................. 14
B. Specimen provisions .................................................................................................................................................. 16
C. Specimen texts for an exchange of notes or letters recording an understanding ............................. 17
ANNEXE III – INSTRUCTION 8.1 OF THE LEGISLATIVE DRAFTING INSTRUCTIONS.................................. 19
ANNEXE IV – DJZ/IR CONTACT DETAILS .................................................................................................................... 21

2
1. INTRODUCTION

Written arrangements in the field of international cooperation fall into two categories: treaties and
international policy arrangements. The latter are usually known as Memoranda of Understanding (MOU),
but can also be known by other names (e.g. Letter of Intent, Arrangement, Political Declaration,
Minutes). Whatever name is used, these are international policy arrangements, laid down in writing,
between different government authorities or between government authorities and international
organisations.

The essential difference between a treaty and an MOU is that a treaty creates legally binding obligations
for States (or international organisations) whereas an MOU is only politically and morally binding on the
governments, ministers, other government authorities such as functionally decentralised authorities
(autonomous administrative authorities (ZBOs)) or geographical decentralised authorities 1 or
international organisations (or parts of organisations) that conclude the arrangement.

The following example may help to clarify this difference. Suppose that the Dutch government works
with another country in the field of agriculture. The political situation in that country then deteriorates
or power is seized by an entity that is not recognised as its government, which causes the Dutch
parliament to request that the partnership be terminated. If the partnership is based on an MOU, the
Dutch government can – if it wishes to – act on this request immediately. By contrast, if the arrangement
is laid down in a treaty, the government can terminate the partnership (barring exceptional
circumstances) only if denunciation or non-application of the treaty is permissible under international
law, for example if the treaty can be denounced with immediate effect (which is hardly ever the case,
usually a notice period applies). Other reasons for terminating an MOU can be that the successor of an
MOU signatory no longer feels bound by the agreements made by their predecessor, that a court rules
that the agreements cannot go ahead or that it comes to light that a signatory was not competent to
sign. In short, when an MOU is signed the participants are aware that performance is not guaranteed.

In order to avoid a situation in which international arrangements are made in the form of a treaty when
an MOU was intended, the Legislative Drafting Instructions provide for the International Law Division of
the Legal Affairs Department (DJZ/IR) of the Ministry of Foreign Affairs to be contacted when an MOU
is drafted. This instruction is discussed Chapter 2. Chapters 3 and 4 (together with the checklist in
Annexe I and the overview of terminology in Annexe II) provide guidelines for drafting an MOU where
the differences between a treaty and an MOU are concerned. These chapters also set out the criteria
applied by DJZ/IR in checking the text of MOUs. Chapter 5 describes the scope and consequences of
this check. The Annexes contain practical instructions.

1
The check of MOUs by DJZ/IR extends to written international policy arrangements between this category of
government and other organisations, and foreign governments/authorities/similar organisations (or parts thereof),
particularly in cases where those arrangements relate to the statutory tasks of the organisation in question. In
those cases the same rules apply as for central government.

3
2. ROLE OF THE MINISTRY OF FOREIGN AFFAIRS

The notes on instruction 8.1 of the Legislative Drafting Instructions (AR 8.1) state:

The Legal Affairs Department (International Law Division) of the Ministry of

Foreign Affairs should be consulted at the earliest possible opportunity about
the preparation of an international policy arrangement in order to avoid
possible international misunderstanding about the legal status of the
arrangement and prevent any incompatibility with the provisions on treaties in
the Constitution.

The words ‘international misunderstanding about the legal status’ refer to possible confusion about the
status of the arrangement: in other words, is it legally binding or (only) politically and morally binding?
DJZ/IR is responsible for protecting signatories of MOUs from any such misunderstandings. The
importance of this is evident from a judgment of the International Court of Justice (ICJ) in 1994. The
ICJ held, in a dispute between Bahrain and Qatar, that the ‘Minutes’ of a meeting, which had been signed
by both foreign ministers, constituted a legally binding agreement. 2 As it therefore constituted a treaty
the foreign minister of Qatar could apply to the courts for performance. This had not been the intention
of his counterpart from Bahrain.

If an arrangement not intended to be legally binding is subsequently held to be legally binding (i.e. to
be a treaty), this may have consequences under constitutional law as there may be a clash with the
provisions of the Constitution. Article 91, paragraphs 1 and 2 of the Constitution provide as follows:

1. The Kingdom shall not be bound by treaties, nor shall such treaties be
denounced without the prior approval of the States General.
2. The manner in which approval is granted shall be laid down by act of
parliament, which may provide for the possibility of tacit approval.

This provision has been elaborated in the Kingdom Act containing regulations on the approval and
publication of treaties. If it subsequently transpires that an international policy arrangement is a treaty,
without the procedural conditions for a treaty having been met, this constitutes an infringement of both
the Constitution and the Kingdom Act.

DJZ/IR checks the submitted text by reference to the points dealt with in chapters 3 and 4 and, if
possible, advises on the matters referred to in chapter 6. On the nature of the check see chapter 5.

The drafters of an MOU are responsible for contacting DJZ/IR. This also applies if another division of the
Ministry of Foreign Affairs or a Dutch mission is involved in the drafting. However, the latter are also
expected to be aware of the need for DJZ/IR to be involved.

2
Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, International Court
of Justice, 1 July 1994 (I.C.J. Report pp. 120-122).

4
3. WHEN IS IT POSSIBLE TO CONCLUDE AN MOU?

As they are not legally binding, MOUs should only contain arrangements of a technical or administrative
nature. By concluding an MOU the signatories indicate that they wish to work together more closely in
a particular area in which they are competent. In the event that the details of a treaty require further
elaboration in additional documents, those details can often be laid down in an MOU.

An MOU may not be concluded where:

- there are provisions that derogate from the Constitution, the Charter for the Kingdom of the
Netherlands or Dutch legislation;
- legislative, executive or judicial powers are conferred on an international organisation;
- legislation or a treaty requires the conclusion of a treaty;
- a proposed arrangement contains provisions which are intended by their very nature to be
binding on all persons (i.e. provisions that grant rights to or impose duties on citizens directly).

Nor should an MOU be used to confer rights and obligations intended to be internationally enforceable.
As an MOU is not legally binding, this would make it impossible to apply for their enforcement in law
(before national or international courts).

Even if the subject matter is suitable for the conclusion of an MOU a treaty may still often be preferable,
sometimes simply because a treaty has a different status from an MOU internationally and is a better
indication of the importance attached to a bilateral or other relationship. This is why, for example,
cultural cooperation is regulated in treaties, although the subject matter would generally be suitable for
an MOU.

Financial contributions to an intergovernmental organisation (i.e. an organisation established by treaty)

and/or a government authority in another country are made on the basis of an international
arrangement. 3 This kind of arrangement, like an MOU, is politically and morally – but not legally –
binding. If you have any questions about this kind of arrangement, please contact DJZ/NR.

International policy arrangements can be concluded either bilaterally (between authorities from two
countries, or between an authority from a country and an international organisation (or part thereof))
or multilaterally (between authorities from multiple countries and/or multiple international
organisations). In international relations multilateral arrangements that are not legally binding are
common. This kind of arrangement is sometimes referred to as ‘soft law’, and these arrangements are
often not called ‘MOU’ but given other names such as ‘declaration’, ‘declaration of intent’, ‘agreement’
or ‘compact’. Although they are not themselves legally binding, such instruments can contribute to the
process of shaping and further developing international law.

The following table sets out the differences between treaties and MOUs.

3
In practice the term ‘contribution agreement’ is sometimes used; this term could potentially lead to
misunderstandings about its legal status. The preferred name is ‘arrangement’, emphasising the non-legally
binding nature.

5
 TREATIES MOUS
1.1. binding under international law politically/morally binding

1.2. legally enforceable not legally enforceable

1.3 may derogate from national legislation compliance must be in accordance

with or within the limits of national
legislation
---------------------------------------------------------------------------------------------------------------
2.1. may be concluded only with the consent consent of the cabinet not
of the cabinet generally required for conclusion

2.2. parliamentary approval nearly always parliamentary approval not

required required
and regulated by law and not regulated by law

2.3 publication required publication not required

---------------------------------------------------------------------------------------------------------------
3.1. immediate application immediate application possible
nearly always impossible

3.2. immediate denunciation immediate denunciation possible

nearly always impossible

3.3 unilateral and (often) unilateral and immediate

immediate amendment amendment possible
not possible

These nine points are logical extensions of one another. As treaties are binding under international law
and are consequently legally enforceable and enforcement cannot be refused on the grounds that the
treaty is contrary to national legislation (see 1), it follows that they are subject to democratic scrutiny
(see 2). Treaties may therefore become binding only after the parliamentary procedures have been
completed. In addition to a provision that enables the parties to comply with these procedures, treaties
almost always contain provisions regulating denunciation and amendment between the parties. They
are bound under international law to comply with these provisions (see 3). It should be noted that a
parliamentary procedure must also be followed when a treaty is denounced or amended. (The
amendment of a treaty constitutes a new treaty.) However, the Kingdom Act containing regulations on
the approval and publication of treaties does provide for exceptions to the requirement of parliamentary
approval. Consequently, it is not always true to say that treaties cannot be concluded quickly and that
the arrangements for amendment and denunciation are rather inflexible.

6
4. THE DRAFTING OF AN MOU

4.1 Intention, content and form

The legal status of an arrangement is evident from its content and form and the intention of the
signatories.
The intention may be stated explicitly, but is usually apparent implicitly from the content and form. This
is why the discussion of the content and form in this guide precedes that of the intention, even though
the intention of the signatories is the most essential factor in determining the legal status (see the case
between Bahrain and Qatar, referred to in chapter 2).

4.2 Content

Chapter 3 explained in what cases an MOU may be concluded.

A factor in determining the status of an arrangement is whether it contains provisions indicating that it
is legally binding. The following are common examples of such provisions:
a. provisions that require a treaty in most countries (e.g. the regulation of privileges and
immunities);
b. provisions under which one signatory can oblige the other to submit to international or domestic
legal proceedings or arbitration;
c. provisions that no international legal proceedings or arbitration will take place; such provisions
belong only in a treaty. A political arrangement cannot prevent governments from submitting a
dispute to an international court or arbitral tribunal;
d. provisions apportioning liability and compensation between the signatories; however,
signatories of an MOU sometimes knowingly accept the risk that they may have to bear the
damage themselves if the MOU is not complied with;
e. provisions on liability and compensation in relation to third parties; a third party who suffers
damage may always disregard an MOU, if necessary after recourse to the courts;
f. provisions in which a treaty that would not be applicable by virtue of its own provisions is
declared applicable; this declaration too may be no more than political in nature;
g. provisions in which it is stated that a legally binding provision (act of parliament or treaty) has
precedence; needless to say, a legally binding arrangement takes precedence over a non-legally
binding arrangement.
It should be noted that such a provision does not discharge the drafters from the obligation to
check whether compliance with the MOU is possible under national and international law, as
there is no point in making a political arrangement that cannot be complied with because it is
contrary to the law;
h. a sentence to the effect that the MOU comes into operation after the signatories have informed
each other (or after one signatory has informed the other) that the relevant statutory
requirements have been fulfilled, as this indicates that the other signatory intends to conclude
a legally binding arrangement
i. provisions stating that denunciation is subject to a period of notice or that certain obligations
will continue to exist even after denunciation, as the non-legally binding status of the MOU
means that the signatories may terminate it at any time; however, as the subject matter of an
MOU almost always involves cooperation and immediate denunciation would not be in keeping
with the spirit of cooperation, such a provision need not be deleted, provided that the signatories
are aware that the provision is not legally enforceable. The period in question must furthermore
be short.

Some of the provisions listed above are of a more serious nature (a, b, e, f and h) and others less so
(c, d, g and i). Even a single provision about immunity from jurisdiction may result in an MOU being
classified as a treaty. This is less likely to happen with a denunciation provision or a provision that a
treaty takes precedence over an MOU, although a string of such provisions could once again jeopardise
the status of the MOU.

7
4.3 Form

4.3.1 Title
The notes on AR 8.1 state that international policy arrangements should preferably be called memoranda
of understanding. Other commonly used names that are acceptable are gentlemen’s agreement,
arrangement and mutual (political) declaration. An MOU may under no circumstances be called a treaty
or convention. The terms agreement and protocol should also be avoided.

The name of an arrangement merely provides an indication of its legal status and is not therefore
decisive.

4.3.2 Signature
The notes on AR 8.1 state that the government, one or more ministers and other government authorities
such as functionally decentralised authorities (autonomous administrative authorities (ZBOs)) or
geographical decentralised authorities may conclude an MOU. Under no circumstances may an MOU be
concluded by or on behalf of the Kingdom of the Netherlands (i.e. the State). This would create the
impression that it was a treaty.

4.3.3 Text
An MOU should not contain words, expressions and provisions which are commonly used in treaties (and
could therefore give the impression that the MOU is a treaty). Besides treaty terms (such as entry into
force) drafters should also avoid words that express a sense of obligation (such as shall and agree and
its derivatives). Annexe II contains a detailed list of provisions and terms of this kind.

4.3.4 Form of the arrangement

Both a treaty and an MOU can have the form of a document to be signed by both (or, as the case may
be, all) signatories or of an exchange of notes or letters. Annexe II contains a standard text for the
introductory and concluding paragraphs of an international policy arrangement in the form of an
exchange of notes or letters.

4.4 Intention of the signatories

When an MOU is concluded, it should be clear that the other signatory does not intend it to be a legally
binding arrangement either. This may be implicitly evident from the text of the arrangement itself, i.e.
if this is in keeping with the requirements of sections 4.2. and 4.3. In such a case, the content and form
are then in keeping with the status of the arrangement intended by the signatories.

The signatories may also explicitly agree that the MOU is not legally binding. This may be done in the
text of the MOU itself (or in a joint declaration) by adding the following sentences:

This Memorandum of Understanding does not create any rights or obligations

under international law.

or

This Memorandum of Understanding does not constitute a treaty.

(See also Annexe II.)

The requirements of content and form are less important if there is an explicit (written) arrangement
that the MOU is not legally binding. However, if the other signatory insists on enforcing contested
provisions and terms, one of the above provisions should be included as an explicit declaration that the
arrangement is not legally binding.

8
5. CONTENT AND CONSEQUENCES OF THE CHECK BY DJZ/IR

The responsibilities of the drafters of an MOU include negotiating the text, preparing its content and
ensuring its consistency, where necessary submitting the text to the cabinet and sending it to
parliament, internal and interdepartmental coordination, translations, producing the texts for signature
and arranging for signing. (For information about some of these points, see chapter 6.)

DJZ/IR checks an MOU only to ensure that there can be no possible misunderstanding about its legal
status. This check is carried out in the manner described in chapter 3 and chapter 4. DJZ/IR assumes
that the check of the substance of the MOU – particularly whether compliance with the MOU is possible
in conformity with or within the limits of Dutch legislation – is carried out of by the competent ministry
or organisation. In many cases, DJZ/IR will refer therefore the drafters to the legal department of the
ministry or organisation concerned for the latter check. If necessary, the drafters may be asked to
contact one or more other ministries or organisations about the content.

If the first draft of an MOU is prepared by a Dutch entity, it is advisable to submit the text to DJZ/IR
before presenting it to the other signatory. Reversing or modifying one’s own proposals later is difficult.

Cases may occur in which DJZ/IR states that an MOU cannot be concluded because the subject matter
is not suitable (see chapter 3). In that case no international written arrangements may be made unless
a treaty is concluded. In many cases, however, DJZ/IR will judge that certain sections, passages or
words must be omitted or replaced as the content or form does not meet the requirements for an MOU.

If the other signatory refuses to accept some or all of the proposals for changes, the drafters may
contact DJZ/IR again. If it transpires that this refusal is because the other signatory wishes to have a
legally binding arrangement, the conclusion may be reached either that an international policy
arrangement is not possible or that there should be a treaty.

9
6. PRACTICAL POINTS

This section deals with aspects of the conclusion of MOUs unrelated to their legal status.

6.1 Interministerial coordination

The drafters of an MOU should check whether the subject matter comes within the remit of other central
or decentralised government authorities. If so, the content of the MOU (and a number of other matters
discussed below) should be coordinated with them.

6.2 Relations within the Kingdom

If there has been no contact about an MOU with other parts of the Kingdom of the Netherlands (or the
authorities there), what are known as ‘government MOUs’ are concluded by the government of the
Netherlands, the government of Aruba, the government of Curaçao or the government of St Maarten,
as the case may be. It should also be noted that only the Minister of Foreign Affairs and the Minister of
Defence have the status of Minister of the Kingdom of the Netherlands. All other ministers have the
status of Minister (or State Secretary) of the Netherlands, Aruba, Curaçao or St Maarten.

6.3 Signature

Full powers from the Minister of Foreign Affairs are not required for the signature of an MOU, unlike a
treaty. A minister may sign an MOU – even an intergovernmental MOU – if he is responsible for the
subject matter.

Where an MOU is to be signed by officials on behalf of a minister or state secretary, they should be duly
authorised by a general mandate of the ministry concerned or an ad hoc mandate. Ambassadors and
embassy staff may sign MOUs if they have been requested to do so by or on behalf of the competent
ministers or state secretaries.

If the subject matter of the MOU is partly within the remit of another government authority, there should
be consultation with that authority about whether the minister or official signing the MOU may make a
politically binding arrangement about matters not within his remit. If necessary, consent must be given
in writing. If there is a difference of opinion about this, a solution may be to have the document signed
by two people on behalf of the Netherlands. It should be noted that the participants at international
level usually try to achieve a degree of balance between signatories (in terms of not only their number
but also their position).

6.4 Submission of an MOU to the cabinet

An MOU must be submitted to the cabinet if it contains arrangements affecting government interests.
As such cases are fairly rare, MOUs are seldom dealt with in cabinet. Submission is conceivable, for
example, in a case where an arrangement is permissible on the basis of an MOU pending conclusion of
a treaty. Similarly, submission to the cabinet may be advisable if the subject matter comes within the
remit of two or more ministers. Usually, however, coordination takes place between officials of the
ministries concerned.

6.5 Provision of information about or text of an MOU to parliament

10
It is up to the drafters of the MOU (i.e. the ministries concerned and/or the relevant policy units of the
Ministry of Foreign Affairs) to decide whether information about an MOU or its text should be provided
to parliament. In view of the technical and administrative nature of MOUs, parliament will often have no
interest in receiving such information. Naturally, any request by parliament for information about an
MOU or forwarding of the text should be complied with.

6.6 Languages, texts and arrangements for signing

The drafters of an MOU decide in which language or languages it is concluded. An MOU with an English-
speaking or French-speaking country is almost always concluded only in English or French, as the case
may be. MOUs with other countries are often also concluded in English. In the case of MOUs in other
languages (including German and Spanish) there is often a Dutch text as well. The drafters are
responsible for arranging for texts to be typed up and for any translations to be produced and their
quality to be checked. No special binders of the kind used for treaties exist for MOUs. The drafters
themselves are also responsible for arranging any signing ceremony.

6.7 Publication

Publication of an MOU may be worthwhile, although this is not strictly necessary as MOUs may not
contain provisions binding on citizens. If they are published, this is generally in the Government Gazette,
in a ministry’s publication journal, on the central government website or on the website of an
implementing organisation, rather than in the Dutch Treaty Series.

11
ANNEXES

ANNEX I - CHECKLIST

The steps to be taken when drafting an MOU are set out below in the form of questions. In each case
there is a reference to the relevant chapters and sections.

1. Preparation

1.1 Does the subject matter require the conclusion of a treaty, i.e. does the arrangement
include matters that may be regulated only in a legally binding manner?
Chapter 3; Chapter 4, section 2

1.2 Even if an MOU would be appropriate for the subject matter, are there other reasons for
concluding a treaty?
Chapter 3

1.3 Should the MOU be in the form of a document to be signed by all signatories or of an
exchange of notes or letters?
Chapter 4, section 3; Annexe II

1.4 Does the draft text include expressions or provisions that do not belong in an MOU?
Chapter 4, section 1 and 2; Annexe II

1.4.1 Does the title correspond with the legal status?

Chapter 4, section 2; Annexe II

1.4.2 Are the provisions on commencement and termination correct?

Annexe II

1.4.3 Is it necessary or worthwhile to express the intention of political commitment in the

MOU itself?
Chapter 4, section 4

1.4.4 Is the description of the Dutch signatory or signatories correct?

Chapter 4, section 2; Chapter 6, section 2

1.5 Is the member of government who is to sign the MOU competent to do so and/or does
the civil servant who is to sign it have a mandate or authority to do so?
Chapter 6, section 3

1.6 Where necessary, have other competent bodies of central or local government been
contacted?
Chapter 6, sections 1, 2, 3

1.7 Should the draft text be submitted to the cabinet?

Chapter 6, section 4

1.8 Should the MOU be sent to parliament?

Chapter 6, section 5

1.9 In what language(s) should the MOU be concluded?

Chapter 6, section 6

12
2. Has DJZ/IR been contacted about this through your own legal department?

Chapter 2

3. Negotiations

3.1 Has the other signatory proposed provisions or expressions that do not belong in an
MOU or have the representatives of the other signatory objected to such provisions and
expressions? (If so, explicit mention should be made of the intention to have a non-
legally binding arrangement.)
Chapter 1; Chapter 2

3.2 Does the final text meet the requirements of form and content?
Chapter 2; Chapter 4, sections 2 and 3; Chapter 5

3.2.1 Is further contact with DJZ/IR necessary?

Chapter 5

3.3 Is further contact with other competent central or decentralised government bodies
necessary?
Chapter 6, section 1

3.4 Have arrangements been made concerning the language of the MOU, translations, the
production of the text and the signing?
Chapter 6, sections 3 and 6

4. Completion

4.1 If necessary, has the cabinet been informed of the signing?

Chapter 6, section 4

4.2 Has parliament been informed/supplied with a copy?

Chapter 6, section 6.5

4.3 Has the MOU been published in the appropriate place?

Chapter 6, section 6.7

13
 ANNEXE II – THE TERMINOLOGY OF MEMORANDA OF UNDERSTANDING

Expressions and provisions that can cause memoranda of understanding to be confused

with treaties

The use of expressions and provisions that can result in an MOU being classified as a treaty should be
avoided.

It is not always possible to induce the representatives of the other signatory to remove all ‘procedural
defects’. Whether the form of the text is acceptable in such a case is ultimately a matter to be decided
by DJZ/IR.

As almost all MOUs are concluded in English, this is the language in which the list has been drawn up.
It is based partly on an internal publication of the Treaty Section of the United Kingdom’s Foreign and
Commonwealth Office.

When an MOU is concluded in another language, the terminology is assessed by DJZ/IR.

DO NOT USE USE INSTEAD

Treaty, Convention, Agreement, Protocol Memorandum of Understanding, Arrangement,

Mutual Declaration

article paragraph (or numbering in the margin)

agree(d) accept(ed), approve(d), decide(d), consent(ed)

have agreed as follows have come to the following understanding, have

come to the following arrangement

agreements, undertakings arrangements, understandings

being equally authoritative, being equally having equal validity, being equally valid
authentic

be entitled to enjoy

bound to be, bound by covered by

clause paragraph

conditions, terms provisions

commitments arrangements

continue in force continue to have effect

done signed

enter into force come into operation, come into effect, become
effective

mutually agreed jointly decided

14
obligations conditions, terms, duties

parties participants, signatories

preamble introduction

rights benefits

reserves the right may

shall will

undertake, agree to decide

undertake carry out

15
B. Specimen provisions

1. The expression entry into force should not be used. The following provisions regulate the
moment when the MOU becomes applicable:

This Memorandum of Understanding will come into operation/effect upon signature.

This Memorandum of Understanding will come into operation/effect on the date when the later
Signatory/Participant informs the other Signatory/Participant accordingly.

2. The following may be used to regulate termination of an MOU:

This Memorandum of Understanding may be terminated by either Signatory/Participant.

If termination is subject to a (politically binding) period of notice (see chapter 4, section 2,) the following
wording may be used:

This Memorandum of Understanding may be terminated by either Signatory/Participant giving (one)

month’s written notice to the other Signatory/Participant.

3. If the provisions on commencement and termination are combined the following wording
may be used:

This Memorandum of Understanding will come into operation on the date of signature (on the date when
the later Signatory/Participant informs the other Signatory/Participant accordingly) and will continue in
operation until terminated by either Signatory/Participant (on one month’s written notice to the other
Signatory/Participant).

4. The following may be used as a final paragraph:

The foregoing record represents the understandings/arrangements reached between ... and ... on
matters referred to therein.

Signed in duplicate at ... on ... in the English (and Dutch) language(s), (both texts having equal validity).

The Minister of/for ...... of the (Kingdom of the) Netherlands

For the Minister of/for ... of the (Kingdom of the) Netherlands

(etc.).

5. The following wording may be used to express the intention that the MOU is not a legally
binding arrangement:

This Memorandum of Understanding does not create any rights or obligations under international law.

NB. It is sometimes argued that the effect of this internationally accepted provision is that national
rather than international law is applicable. Although this provision does not actually have this meaning,
it should be viewed in contrast with treaties (which, unlike MOUs, are governed by international law).

This Memorandum of Understanding does not constitute a Treaty.

16
C. Specimen texts for an exchange of notes or letters recording an understanding

An exchange of letters takes place between people (for example between ministers or between a
minister and an ambassador) and an exchange of notes between institutions (for example between
ministries, between subordinate authorities or between an institution and an embassy).

The specimens below are an exchange of letters between a Dutch ambassador and a Minister of Foreign
Affairs and an exchange of notes between a Dutch embassy and a Ministry of Foreign Affairs. Both cases
concern MOUs between governments. The non-italicised parts are typical of the non-legally binding
status of the specimen text and must therefore be included even if the specimen text is altered. When
using these specimens, see also part B of this Annexe for provisions on commencement and termination.

Exchange of Letters

Initial Letter

I have the honour to refer to discussions which have taken place between (representatives of) the
Government of the Netherlands and the Government of... concerning…
As a result of these discussions it is the understanding of the Government of the Netherlands that the
following arrangements will apply:

(insert here the substantive part of the MOU)

If the arrangements set out above are acceptable to the Government of ..., I have the honour to suggest
that this Letter and Your Excellency's reply to that effect will place on record the understanding of the
Government of the Netherlands and the Government of ... in this matter which will come into operation
on the date of your reply.

Answering/Reply Letter

I have the honour to acknowledge receipt of you Letter dated ... concerning ... and to confirm that the
arrangements set out in your Letter are acceptable to the Government of ....... and that your Letter and
this reply will place on record the understanding of the Government of ... and the Government of the
Netherlands in this matter which will come into operation on this day's date.

Exchange of Notes

Initial Note

The Embassy of the Kingdom of the Netherlands has the honour to refer to discussions which have taken
place between (representatives of) the Government of the Netherlands and the Government of ...
concerning….

As a result of these discussions it is the understanding of the Government of the Netherlands that the
following arrangements will apply:

(insert here the substantive part of the MOU)

If the arrangements set out above are acceptable to the Government of ..., I have the honour to suggest
that this Note and the reply of the Ministry to that effect will place on record the understanding of the
Government of the Netherlands and the Government of ... in this matter, which will come into operation
on the date of the reply.

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Answering/Reply Note

The Ministry of Foreign Affairs of ... has the honour to acknowledge receipt of Note No. ... dated ...
concerning ... and to confirm that the arrangements set out in this Note are acceptable to the
Government of ....... and that this Note and this reply will place on record the understanding of the
Government of ... and the Government of the Netherlands in this matter which will come into operation
on this day's date.

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 ANNEXE III – INSTRUCTION 8.1 OF THE LEGISLATIVE DRAFTING INSTRUCTIONS

Instruction 8.1 Terminology in treaties

1. Treaty means: every agreement drawn up in writing which is binding on the State in
accordance with international law criteria.

2. The Dutch translation of the title of a treaty should preferably use the constitutional term
‘verdrag’ (treaty) and not the term ‘overeenkomst’ (agreement).

3. In treaties the Kingdom of the Netherlands should be designated as such as a party to the
treaty.

4. In the negotiations on draft treaties the aim should be to have the State – and not the
government – designated as party.

Notes

Criteria for treaties. Factors that are not decisive in whether a treaty exists are the form (a treaty may
consist of one or more documents), the title, the manner of conclusion and the position of the persons
making the arrangement. As far as the principles of the law of treaties are concerned, reference is made
to the Vienna Convention on the Law of Treaties, in particular article 2 (Dutch translation in Dutch Treaty
Series 1985, 79). It should be noted that treaties can also be concluded with international organisations.
A treaty becomes binding on the Kingdom of the Netherlands only after it enters into force for the
Kingdom.

Name. If a treaty does not have the name ‘verdrag’ in the title, it should preferably be referred to as a
treaty in other documents unless this could cause confusion with other treaties mentioned in that
document. In other words, a letter which states that its subject is ‘Agreement on ....’ should refer
elsewhere to the ‘above-mentioned treaty’.

Parties. If the aim to have the State designated as party is not achieved, the explanatory memorandum
should indicate that the treaty will apply to the State. The subject of international law is the Kingdom
of the Netherlands, even if the treaty only applies to one part of the Kingdom: the Netherlands, Aruba,
Curaçao or St Maarten. It is incorrect to give ‘The Netherlands’ as the name of the contracting party.

International policy arrangements. There are two categories of written international public-law
arrangements, which must be clearly distinguished: treaties and international policy arrangements. The
essential difference between the two is that a treaty creates legally binding obligations for states (or
international organisations), whereas an international policy arrangement is only politically and morally
binding on governments, ministers, other government authorities or parts of international organisations.

The following points should be made about international policy arrangements. If it is intended to enter
into an arrangement that is not binding on States under international law, an international policy
arrangement may be concluded between governments, ministers, subordinate authorities or
international organisations. Such policy arrangements should preferably be called memoranda of
understanding (MOUs). The object is often to make arrangements for future parallel action or to
coordinate the policy of otherwise independent parties. Policy arrangements are politically and morally
binding for the governments or ministers concerned, but do not create legal obligations that are
enforceable in law. However, the governments, ministers and others concerned can be expected to
comply with the policy arrangements in so far as this is permissible under the constitution and laws of
the country concerned. The government can act immediately on a request from the Dutch parliament
to terminate policy arrangements. Another reason for termination can be if a court rules that
arrangements cannot go ahead because compliance is considered contrary to legislation or is otherwise
unlawful.

Consultation with the Legal Affairs Department, International Law Division. The Legal Affairs Department
(International Law Division) of the Ministry of Foreign Affairs should be consulted at the earliest possible

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opportunity about the preparation of an international policy arrangement in order to avoid possible
international misunderstanding about the legal status of the arrangement and prevent possible
incompatibility with the provisions on treaties in the Constitution. The Ministry of Foreign Affairs has
drawn up a brochure on MOUs, which is available on the central government intranet (Rijksportaal).

Consultation with the Constitutional Affairs and Legislation Department. If when preparing an
international policy arrangement, a possible incompatibility with the provisions in the Constitution arises,
the Constitutional Affairs and Legislation Department at the Ministry of the Interior and Kingdom
Relations should also be consulted.

Once concluded, MOUs are kept by the ministry responsible for the content of the international policy
arrangement.

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 ANNEXE IV – DJZ/IR CONTACT DETAILS

Legal Affairs Department

International Law Division
Tel. +31 (0)70 348 6724

DJZ-IR@minbuza.nl
https://www.centruminternationaalrecht.nl/

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