In 2012, during its sixty-fourth session, UN's International Law Commission adopted the provisional application of a treaty, following the recommendation of its Working group on the Long-Term Programme of Work. The main objective behind this inclusion was to cast light on a provision contained in Article 25 of the Vienna Convention on the Law of Treaties (VCLT) and to clarify its...
In 2012, during its sixty-fourth session, UN's International Law Commission adopted the provisional application of a treaty, following the recommendation of its Working group on the Long-Term Programme of Work. The main objective behind this inclusion was to cast light on a provision contained in Article 25 of the Vienna Convention on the Law of Treaties (VCLT) and to clarify its legal effects and the different modalities through which this provision can be resorted to. Mr. Manuel Gómez-Robledo was appointed as the Special Rapporteur by the commission.
In common parlance, the provisional application of a treaty, or part of a treaty, means a vehicle, which is available to States and international organizations to give effect to all or some of the provisions of a treaty pending entry into force.
The Four Reports
The absence of a lucid definition, uniformity in the practice of States and Secretariats of international organizations was lacking, when the Secretariats acted as depositaries of treaties or were entrusted with registration responsibilities, particularly in the case of the United Nations under Article 102, Paragraph 1, of the UN Charter. Therefore, in the first report, Special Rapporteur aimed to prepare an introduction to the study of provisional application, address issues arising out of the inappropriate use of terminology, and develop the future course of action.
The second report dealt with the most pressing issue of the legal effects of the provisional application and its relationship with domestic law.
In the third report, a first review of the relationship of Article 25 with other provisions of the 1969 VCLT was submitted, supported by the theoretical inferences of the former two reports. The relationship between the provisional application with articles: 11, means of expressing consent to be bound by a treaty; 18, an obligation not to defeat the object and purpose of a treaty before it entered into force; 24, entry into force; 26, Pacta sunt servanda; and 27, internal law and observance of treaties were established. Taking into consideration the States' comments and the debates held in the Sixth Committee of the General Assembly, the first package of six draft guidelines were submitted.
Two recurring issues were addressed in the fourth report. Firstly, the relationship of provisional application with other provisions of the 1969 Vienna Convention, in particular with Part II, Section 2: Reservations, Part V, Section 2: Invalidity of treaties, Part V, Article 60: Termination or suspension of the operation of a treaty as a consequence of its breach and Part VI, Article 73: Cases of State succession, State responsibility, and an outbreak of hostilities. Second, the practice of international organizations in relation to the provisional application of treaties, particularly, The United Nations, The Organization of American States (OAS), The European Union, The Council of Europe, The North Atlantic Treaty Organization (NATO), and the Economic Community of West African States (ECOWAS). Along with this, draft guideline 10, was included which elucidated upon the possibility to agree on limitations to the provisional application of a treaty derived from domestic law.
Subsequently, a fifth report was also submitted, along with two new draft guidelines on termination or suspension of the provisional application of a treaty or a part of a treaty as a consequence of its breach and the formulation of reservations. The report was an extension of the analysis of views demonstrated by member states in debated and via written comments and included additional information on the International Organization of la Francophonie (OIF), the International Labor Organization (ILO); and the European Free Trade Association (EFTA).
In 2018, the Draft Guide to Provisional Application, which contains 12 Draft Guidelines and commentaries, was adopted. The Draft Guide focused on providing "assistance to States, international organizations and other users concerning the law and practice on the provisional application of treaties" and at directing "States, international organizations and other users to answers that are consistent with existing rules and most appropriate for contemporary practice".
The Four Reasons
Member states resort to provisional application more frequently under four situations, as identified by Juan Manuel Gómez-Robledo. First, when there is an emergency such as a natural disaster. The Chernobyl nuclear power plant incident led to concluding to two conventions, namely- Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, which contain explicit provisional application clauses, to implement the provisions of the treaty as soon as possible.
Second, a situation when flexibility is needed to implement a treaty at the earliest, as and when the demand arises.
The third situation is in regards to precaution where states have to turn to the provisional application when the agreement reached is of a "very strong political character" and "seek to build the necessary confidence to prevent States from changing their position during the ratification process" as observed in the 1993 Treaty between the United States of America and the Russian Federation, which intended to reduce and omit offensive strategic armament et al. Political reasons for provisional application of a treaty could also include the political difficulty of submitting the treaty of approval to the competent legislative body.
Lastly, "the transition to the imminent entry into force" can be deciphered by noting the implementation of Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), which described the concept of 'area' as not only "exploitation and use of resources found within the Area, but also the establishment of the International Seabed Authority and its operational framework.". To ensure wider participation of member states and to instill confidence that the agreement will have immediate effect once UNCLOS entered into force, the United Nations General Assembly scheduled in November 1994, adopted the Agreement relating to the implementation of Part XI of UNCLOS in July 1994.
Conditions
An agreement for provisional application is optional and can be either included in the treaty itself or provided in any other manner. However, it needs the agreement of the States or International organizations concerned. Article 25(1) (a) of the Vienna Convention on the Law of Treaties codifies the possibility of a provision in the treaty as the basis for provisional application. This has been further reiterated in the Draft Guide to Provisional Application. Many bilateral and multilateral investment instruments have a provision for provisional application. Article 45(1) of the Energy Charter Treaty has a provision under which the signatory parties can apply the provisions of the energy charter provisionally. Article 25(1) (b) provides for an agreement to apply a treaty provisionally in a separate treaty or some other alternate arrangement. The International Law Commission validates this view. In some cases, States have applied the provisions of a treaty on a provisional basis through an exchange of notes, or through 'unilateral declarations accepted by the other relevant party', when the treaty did not contain a provision regarding its provisional application.
Legal Effect & Termination
The provisional application of a treaty creates a legal right and obligation to apply the treaty as if it were already in force. As per the decision of the arbitral tribunals, its violation will attract international scrutiny and responsibility in the same manner, as if the treaty was in force.
However, provisional application ends once the treaty enters into force. Unless that treaty mentions or the States and international organizations have agreed otherwise, provisional application can also be "terminated through a notification of the State or the international organization concerned that it does not intend to become a party to the treaty". As per the tribunals, if the treaty comes into force in a particular territory, that doesn't conclude that, the provisional application will be terminated in other territories as well.
Views are personal.
References
Robledo, J. M. G. R. (n.d.-a). First report on the provisional application of treaties. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://legal.un.org/ilc/documentation/english/a_cn4_664.pdf
Robledo, J. M. G. R. (n.d.-c). Second report on the provisional application of treaties. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N14/425/44/PDF/N1442544.pdf?OpenElement
Robledo, J. M. G. R. (n.d.-d). Third report on the provisional application of treaties. Https://Documents-Dds-Ny.Un.Org/Doc/UNDOC/GEN/N15/170/80/PDF/N1517080.Pdf?OpenElement. Retrieved October 4, 2021, from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/170/80/PDF/N1517080.pdf?OpenElement
Robledo, J. M. G. R. (n.d.-b). Fourth report on the provisional application of treaties. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/169/76/PDF/N1616976.pdf?OpenElement
Robledo, J. M. G. R. (n.d.-a). Fifth report on the provisional application of treaties. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/046/40/PDF/N1804640.pdf?OpenElement
International Law Commission. (n.d.). Guide to provisional application of treaties. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://documents-dds-ny.un.org/doc/UNDOC/LTD/G18/140/60/PDF/G1814060.pdf?OpenElement
United Nations. (n.d.). Vienna Convention on the Law of Treaties. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
United Nations. (n.d.). Charter of the United Nations. Https://Legal.Un.Org/. Retrieved October 4, 2021, from https://legal.un.org/repertory/art1