CYIL vol. 12 (2021)

pavel šturma CYIL 12 (2021) comments and observations on the draft Guide, as adopted on first reading, and on several draft model clauses proposed by him at the 71 st session of the Commission (2019). However, the Commission did not support the draft model clauses. Therefore, the Special Rapporteur instead proposed example provisions on provisional application of treaties. The Commission then adopted the entire Guide to Provisional Application of Treaties, comprised of 12 draft guidelines and a draft annex containing the example provisions, together with commentaries thereto. It is another document that, although not legally binding as such, elaborates upon the existing rules of international law, previously codified mainly in the Vienna Convention on the Law of Treaties (1969). The title and form of the outcome takes inspiration from the Guide to Practice on Reservations to Treaties, adopted by the Commission in 2011. 7 However, the present Guide is much shorter and less detailed than that on reservations. The first guidelines explain the scope and purpose of the draft guidelines. They concern the provisional application of treaties by states and by international organizations (Guideline 1). Their purpose is “to provide guidance regarding the law and practice on the provisional application of treaties, on the basis of Article 25 of the Vienna Convention on the Law of Treaties and other relevant rules of international law”. That is why Guideline 3 reiterates the general rule based on Article 25 of the Vienna Convention that “a treaty or a part of a treaty is applied provisionally pending its entry into force between the States or international organizations concerned, if the treaty itself so provides, or if in some other manner it has been so agreed”. It is thus recognized that the basis for provisional application of a treaty or a part of a treaty lies in agreement. Next, Guideline 4 clarifies the form of agreement. In addition to the case where the treaty itself so provides, the provisional application may be agreed between the states or international organizations concerned through (a) a separate treaty, or (b) any other means or arrangements, including a resolution, decision, or other act adopted by an international organization or at an intergovernmental conference, reflecting the agreement of the states or international organizations concerned, or a declaration by a state or by an international organization that is accepted by the other states or international organizations. Thus, it is not the unilateral act of states or international organizations as such but the fact that it has been accepted or reflects the agreement, which constitutes the basis for provisional application. Guideline 5 addresses the commencement of the provisional application of a treaty or a part of a treaty. It takes effect “on such date, and in accordance with such conditions and procedures, as the treaty provides or as is otherwise agreed”. The key issue of legal effect is clarified in guideline 6. According to it, the provisional application produces “a legal binding obligation to apply the treaty or a part thereof between the States or international organizations concerned, except to the extent that the treaty otherwise provides or it is otherwise agreed”. This also implies that “such treaty or part of a treaty that is being applied provisionally must be performed in good faith”. The binding effect of the provisional application of treaties also means that the breach of an obligation arising under a treaty that is applied provisionally entails international responsibility in accordance with the applicable rules of international law (Guideline 8).

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7 See Yearbook of the ILC, 2011, Vol. II, Part Three (A/CN.4/SER.A/2011/Add.1 (Part 3)).