[Code of Federal Regulations]
[Title 22, Volume 1, Parts 1 to 299]
[Revised as of April 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR181.2]
[Page 587-589]
TITLE 22--FOREIGN RELATIONS
CHAPTER I--DEPARTMENT OF STATE
PART 181--COORDINATION, REPORTING AND PUBLICATION OF INTERNATIONAL AGREEMENTS--Table of Contents
Sec. 181.2 Criteria.
(a) General. The following criteria are to be applied in deciding
whether any undertaking, oral agreement, document, or set of documents,
including an exchange of notes or of correspondence, constitutes an
international agreement within the meaning of the Act, as well as within
the meaning of 1 U.S.C. 112a, requiring the publication of international
agreements. Each of the criteria except those in paragraph (a)(5) of
this section must be met in order for any given undertaking of the
United States to constitute an international agreement.
(1) Identity and intention of the parties. A party to an
international agreement must be a state, a state agency, or an
intergovernmental organization. The parties must intend their
undertaking to be legally binding, and not merely of political or
personal effect. Documents intended to have political or moral weight,
but not intended to be legally binding, are not international
agreements. An example of the latter is the Final Act of the Helsinki
Conference on Cooperation and Security in Europe. In addition, the
parties must intend their undertaking to be governed by international
law, although this intent need not be manifested by a third-party
dispute settlement mechanism or any express reference to international
law. In the absence of any provision in
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the arrangement with respect to governing law, it will be presumed to be
governed by international law. This presumption may be overcome by clear
evidence, in the negotiating history of the agreement or otherwise, that
the parties intended the arrangement to be governed by another legal
system. Arrangements governed solely by the law of the United States, or
one of the states or jurisdictions thereof, or by the law of any foreign
state, are not international agreements for these purposes. For example,
a foreign military sales loan agreement governed in its entirety by U.S.
law is not an international agreement.
(2) Significance of the arrangement. Minor or trivial undertakings,
even if couched in legal language and form, are not considered
international agreements within the meaning of the Act or of 1 U.S.C.
112a. In deciding what level of significance must be reached before a
particular arrangement becomes an international agreement, the entire
context of the transaction and the expectations and intent of the
parties must be taken into account. It is often a matter of degree. For
example, a promise to sell one map to a foreign nation is not an
international agreement; a promise to exchange all maps of a particular
region to be produced over a period of years may be an international
agreement. It remains a matter of judgment based on all of the
circumstances of the transaction. Determinations are made pursuant to
Sec. 181.3. Examples of arrangements that may constitute international
agreements are agreements that: (i) Are of political significance; (ii)
involve substantial grants of funds or loans by the United States or
credits payable to the United States; (iii) constitute a substantial
commitment of funds that extends beyond a fiscal year or would be a
basis for requesting new appropriations; (iv) involve continuing and/or
substantial cooperation in the conduct of a particular program or
activity, such as scientific, technical, or other cooperation, including
the exchange or receipt of information and its treatment, or the pooling
of data. However, individual research grants and contracts do not
ordinarily constitute international agreements.
(3) Specificity, including objective criteria for determining
enforceability. International agreements require precision and
specificity in the language setting forth the undertakings of the
parties. Undertakings couched in vague or very general terms containing
no objective criteria for determining enforceability or performance are
not normally international agreements. Most frequently such terms
reflect an intent not to be bound. For example, a promise to ``help
develop a more viable world economic system'' lacks the specificity
essential to constitute a legally binding international agreement.
However, the intent of the parties is the key factor. Undertakings as
general as those of, for example, Articles 55 and 56 of the United
Nations Charter have been held to create internationally binding
obligations intended as such by the parties.
(4) Necessity for two or more parties. While unilateral commitments
on occasion may be legally binding, they do not constitute international
agreements. For example, a statement by the President promising to send
money to Country Y to assist earthquake victims would not be an
international agreement. It might be an important undertaking, but not
all undertakings in international relations are in the form of
international agreements. Care should be taken to examine whether a
particular undertaking is truly unilateral in nature, or is part of a
larger bilateral or multilateral set of undertakings. Moreover,
``consideration,'' as that term is used in domestic contract law, is not
required for international agreements.
(5) Form. Form as such is not normally an important factor, but it
does deserve consideration. Documents which do not follow the customary
form for international agreements, as to matters such as style, final
clauses, signatures, or entry into force dates, may or may not be
international agreements. Failure to use the customary form may
constitute evidence of a lack of intent to be legally bound by the
arrangement. If, however, the general content and context reveal an
intention to enter into a legally binding relationship, a departure from
customary form will not preclude the arrangement
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from being an international agreement. Moreover, the title of the
agreement will not be determinative. Decisions will be made on the basis
of the substance of the arrangement, rather than on its denomination as
an international agreement, a memorandum of understanding, exchange of
notes, exchange of letters, technical arrangement, protocol, note
verbale, aide-memoire, agreed minute, or any other name.
(b) Agency-Level agreements. Agency-level agreements are
international agreements within the meaning of the Act and of 1 U.S.C.
112a if they satisfy the criteria discussed in paragraph (a) of this
section. The fact that an agreement is concluded by and on behalf of a
particular agency of the United States Government, rather than the
United States Government, does not mean that the agreement is not an
international agreement. Determinations are made on the basis of the
substance of the agency-level agreement in question.
(c) Implementing agreements. An implementing agreement, if it
satisfies the criteria discussed in paragraph (a) of this section, may
be an international agreement, depending upon how precisely it is
anticipated and identified in the underlying agreement it is designed to
implement. If the terms of the implementing agreement are closely
anticipated and identified in the underlying agreement, only the
underlying agreement is considered and international agreement. For
example, the underlying agreement might call for the sale by the United
States of 1000 tractors, and a subsequent implementing agreement might
require a first installment on this obligation by the sale of 100
tractors of the brand X variety. In that case, the implementing
agreement is sufficiently identified in the underlying agreement, and
would not itself be considered an international agreement within the
meaning of the Act or of 1 U.S.C. 112a. Project annexes and other
documents which provide technical content for an umbrella agreement are
not normally treated as international agreements. However, if the
underlying agreement is general in nature, and the implementing
agreement meets the specified criteria of paragraph (a) of this section,
the implementing agreement might well be an international agreement. For
example, if the underlying agreement calls for the conclusion of
``agreements for agricultural assistance,'' but without further
specificity, then a particular agricultural assistance agreement
subsequently concluded in ``implementation'' of that obligation,
provided it meets the criteria discussed in paragraph (a) of this
section, would constitute an international agreement independent of the
underlying agreement.
(d) Extensions and modifications of agreements. If an undertaking
constitutes an international agreement within the meaning of the Act and
of 1 U.S.C. 112a, then a subsequent extension or modification of such an
agreement would itself constitute an international agreement within the
meaning of the Act and of 1 U.S.C. 112a.
(e) Oral agreements. Any oral arrangement that meets the criteria
discussed in paragraphs (a)(1)-(4) of this section is an international
agreement and, pursuant to section (a) of the Act, must be reduced to
writing by the agency that concluded the oral arrangement. In such
written form, the arrangement is subject to all the requirements of the
Act and of this part. Whenever a question arises whether an oral
arrangement constitutes an international agreement, the arrangement
shall be reduced to writing and the decision made in accordance with
Sec. 181.3.