Intent matters
Re: "Critics question PM's MoU on scams", (BP, Nov 8) & "No conclusion yet on MoUs, panel says", (BP, Oct 28).
Memoranda of Understanding (MoU) seem to be increasingly in the national, regional and international news nowadays, often attracting controversy, discussion and criticism, and perhaps also indicating their value and function are misunderstood.
MoUs differ and should be distinguished from contracts and treaties. Contracts and treaties are generally intended to create enforceable legal rights and obligations between the parties. MoUs are written statements of intent between the parties, often governments and other corporate or legal entities. They outline agreed principles and objectives for future cooperation, but are usually not intended to be enforceable. Many also explicitly include a clause to the effect that they are not intended to create legal rights and obligations.
Although not strictly enforceable or legally binding, an MoU may nevertheless signal political commitment, mutual goodwill and/or a framework for future negotiations or actions. An MoU may constitute a helpful interim step in negotiating controversial, complex, or sensitive issues, and act as a stepping stone to assist the subsequent development and execution of a later binding contract or treaty to resolve and finalise the issues in question.
To criticise parties to an MoU for failing to enforce the agreement, or to criticise an MoU for not being enforceable, is therefore unhelpful and indicates a failure to appreciate its role and function.
