Provisional Application

Provisional Application

The growing use of provisional application clauses in treaties is a consequence of the need felt to give effect to treaty obligations prior to a state’s formal ratification of / accession to a treaty. The obligations relating to provisional application are undertaken by a conscious voluntary act of the state consistent with its domestic legal framework.

Provisional application of a treaty that has entered into force

The provisional application of a treaty that has entered into force may occur when a state undertakes to give effect to the treaty obligations provisionally although its domestic procedures for ratification / accession have not yet been completed. The intention of the state would be to ratify / accede to the treaty once its domestic legal requirements have been met. Provisional application may be terminated at any time. In contrast, a state which has consented to be bound by a treaty through ratification / accession or definitive signature, is governed by the rules on withdrawal specified in the treaty concerned (Arts. 54, 56, Vienna Convention on the Law of Treaties 1969).

Provisional application of a treaty that has not entered into force

Provisional application of a treaty that has not entered into force may occur when a state notifies that it would give effect to the legal obligations specified in that treaty provisionally. These legal obligations are undertaken by a conscious voluntary act of the state consistent with its domestic legal framework. Provisional application may be terminated at any time. In contrast, a state which has consented to be bound by a treaty through ratification / accession or definitive signature, is governed by the rules on withdrawal specified in the treaty concerned (Arts. 54, 56, Vienna Convention on the Law of Treaties 1969).

Provisional application may continue even after the entry into force of the treaty in relation to a state applying the treaty provisionally until that state has ratified it. Provisional application terminates if a state notifies the other states among which the treaty is being applied provisionally of its intention of not becoming a party to the treaty. [Art. 25 (2), Vienna Convention on the Law of Treaties 1969]

Provisional Entry into Force

There are also an increasing number of treaties which include provisions for provisional entry into force. Such treaties provide mechanisms for entry into force provisionally, should the formal criteria for entry into force not be met within a given period. Provisional entry into force of a treaty may also occur when a number of parties to a treaty which has not yet entered into force, decide to apply the treaty as if it had entered into force. Once a Treaty has entered into force provisionally, it is binding on the parties which agreed to bring it into force provisionally.

The nature of the legal obligations resulting from provisional entry into force would appear to be the same as the legal obligations in a treaty that has entered into force, as any other result would create an uncertain legal situation. It is the criteria for formal entry into force that have not been met but the legal standard of the obligations remains. [Art. 25 (1), Vienna Convention on the Law of Treaties 1969]

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