Over the course of this workshop, we have delved into current practices regarding non-legally binding instruments, challenges, and potential solutions. We have also addressed some of the open questions arising from the Zimmermann report. And there were suggestions how the examples and points could be used for the follow-up discussion in the CAHDI, namely what concrete follow-up action could be agreed upon and be proposed to the CAHDI session that will start tomorrow and where the decision will be taken how to follow-up on the work already undertaken on this item. Throughout the workshop today, the possibility to elaborate so called “tools” regarding non-legally binding instruments has been mentioned several times.

Before we start pondering arguments in favour and against tools in general and then in particular for each potential tool, let us just quickly take a step back and look at the context in which such tools would be developed:

-        On the national level: The submitted responses to the questionnaire, the so-called “Zimmermann” report and today’s workshop have revealed a significant level of agreement on the main characteristics of non-legally binding instruments. There is a clear distinction between legally binding and non-legally binding instruments, with a certain amount of consensus on the terminology that should or should not be used. Importantly, we can note that this consensus extends across both Council of Europe member States and non-member States. The questionnaire and the Zimmermann report have also revealed that in the majority of States reporting, and even in some which do not have a mandatory formal assessment in place, there exist some kind of internal guidelines or written guidance for concluding and assessing non-legally binding agreements. In some states, the obligation to submit any instrument, including a potentially non-legally binding instrument, to centralised formal assessment is even enshrined in law. Thus, there is certain level of consensus and an array of already existing internal written guidelines on the national level.

-        On the regional level : We already have an example by the Organisation of American States’ Inter-American Juridical Committee, the Guidelines on “Binding and Non-Binding Agreements”. We will look at this more in detail in a minute.

-        And on the international level: Professor Forteau’s presentation has informed us about the ongoing work on the international level. As he explained, he considered various tools, including preliminary examinations, guidelines, or model provisions, and ultimately suggests draft conclusions as the most suitable outcome. According to his 2024 report,

draft conclusions would effectively offer guidance and clarify the nature and effects of non-legally binding instruments under international law. He expressed reservations about adding best practices or model clauses to these conclusions, citing concerns about overcomplicating the flexible nature of non-legally binding instruments and the challenges of creating universal recommendations across diverse languages and legal traditions. However, he also mentioned that this could perhaps be done at a regional level.

The CAHDI could therefore ask itself the question whether there is sufficient consensus to develop a similar tool, and how these tools would interact with the ILC’s forthcoming conclusions. Additionally, the CAHDI should also consider the timing of developing such a tool, in particular how such a tool could inform the elaboration of the draft conclusions on the international level.

Now, let’s turn to the arguments in general in favour and against the development of “tools”: We have heard throughout the workshop that elaborating tools such as model texts, guidelines, and glossaries offers several compelling advantages.

In general, strengths include the potential for increased consistency across jurisdictions, which can enhance legal clarity and streamline international cooperation. By providing a structured framework, these tools can facilitate procedural efficiency, making the process of creating and implementing non-legally binding instruments more straightforward and predictable. Moreover, they present opportunities such as establishing a regional reference, which could also aid in capacity building and foster a more predictable legal environment. This, in turn, could influence discussions at the International Law Commission level.

However, we have also heard speakers and participants mention weaknesses to consider: The diversity of national practices can make this a challenging undertaking, and there may be resistance to change. A standardisation of these practices might also limit flexibility and the ability of countries to adapt solutions to their constitutional and political environments. Additionally, the process of concluding non-legally binding instruments might become slower and more cumbersome.

Now, looking at the tools mentioned in the discussion more in detail:

Concerning model text(s), there are examples at the national level but also at the international level for some specific sectors. We have heard in the workshop that model text(s) or clauses can provide significant benefits: they may offer a foundation for consistency across jurisdictions, which can enhance legal clarity and streamline the process of drafting and implementing these instruments. By providing a structured template, model texts can improve efficiency in legal drafting. The CAHDI could also create through this/these model text(s) a regional legal reference, which can help in establishing common practices and standards. However, we also heard some cautionary remarks: A major concern is that they might impose a one-size-fits-all approach, which could fail to accommodate the diverse legal traditions and practices across different jurisdictions. Rigidity might lead to resistance from states that prefer to maintain their national solutions, tailored to their unique constitutional and political environments. Furthermore, the implementation of model texts could be met with challenges such as over-simplification of complex legal issues and therefore be difficult to use if not easily adaptable to all contexts.

Turning to the next potential tool - Guidelines: One example has been elaborated at the regional level by the Inter-American Juridical Committee. It includes guidelines as to definition, capacity to conclude and methods for identifying non-legally binding instruments, procedures, legal effects and training and education. These guidelines also include sample clauses and a glossary of terms. What speaks in favour of CAHDI guidelines on non-legally binding instruments? We have heard several examples or references today and it seems that one of their primary strengths is that they would provide a structured framework for clarifying best practices and promoting consistency in the drafting and implementation of these instruments. By offering detailed advice on how to approach non-legally binding instruments, guidelines could facilitate international cooperation. They could also serve as a valuable tool for capacity building, helping states and organisations to align their practices and improve their handling of non-legally binding instruments. However, guidelines also have some inherent weaknesses. They may face complexity in their adaptation to different legal systems, and there is a risk of generalisation, where the advice might not fully address specific national or sectoral nuances. Despite these drawbacks, guidelines might present significant opportunities. They can promote the development of regional standards by offering clear recommendations for best practices. In conclusion, while guidelines could greatly aid in the harmonisation and improvement of non-legally binding instruments, they must be designed carefully to ensure they are adaptable, relevant, and effectively supported across different legal systems.

Turning to the next potential tool - a compendium of good practices: The Council of Europe has a long experience in preparing good practice compendia. The methodology and criteria to determine good practices should be discussed and decided upon in the CAHDI. Compiling good practices for non-legally binding instruments could offer several advantages: One of the primary strengths is that it provides a flexible and adaptable framework that encourages the sharing of successful approaches and innovations across different jurisdictions. By documenting and disseminating examples of effective practices, this approach facilitates innovation and leadership by showcasing successful examples and can serve as a valuable resource for capacity building. Good practices can also help establish regional standards, promoting consistency while respecting the diversity of national contexts. However, the compilation of good practices is not without weaknesses. There may be a risk of ambiguity in what qualifies as a "good practice." In summary, while compiling good practices offers a valuable means of sharing and promoting effective strategies, it is important to address its limitations as a tool.

The last potential tool I would like to discuss is a glossary. Some states have already communicated their examples, so for instance the UK and Canada. Creating glossaries for non-legally binding instruments could offer several benefits. One of the primary strengths is that a glossary provides clarification of terminology, which can significantly enhance legal clarity and improve communication among parties involved in drafting and implementing these instruments. Additionally, glossaries can serve as an important educational tool and supporting again capacity building. However, there are also weaknesses associated with glossaries. Their limited scope means that they may not cover all the nuances of legal terminology or address every specific context. Moreover, we would also need to factor in that the glossary would first be elaborated in presumably English and French and that these terms would then need to be translated in other respective languages. Thus, if used a translated version of the glossary is used, the reference value of the glossary might be limited. Despite these challenges, glossaries present several opportunities. They could lay the groundwork for future guidelines and enhance international collaboration by providing a common reference point for discussions and negotiations. In summary, while glossaries can greatly aid in standardising terminology and improving understanding, careful attention must be given to which terms to include and which not in order to ensure they are widely accepted and effectively support the diverse needs of different legal systems.

As a last point, the publication of the Zimmermann report could also be considered. This could be done either in print as it has been done before by the CAHDI (see “Expression of Consent by States to be bound by a Treaty”). However, the publication could of course also be done online, in the format already known for the questionnaires and the databases.

In a nutshell, the proposals to the CAHDI could be the following:

-        Approval of the final report and authorising its publication and dissemination.

-        Tools and approaches discussed (elaboration of a glossary, compiling good practices, developing guidelines, development of model text(s)).

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