CYIL vol. 12 (2021)

CYIL 12 (2021) PROVISIONAL APPLICATION OF TREATIES, PROTECTION OF THE ATMOSPHERE … One of the most debated issues within the Commission became that of reservations. Since it was not able to decide whether all rules on reservations to treaties should also apply, mutatis mutandis , on the provisional application, it adopted guideline 7 in the form of without prejudice clause. 8 Guideline 9 addresses the terminationof the provisional application. Its first twoparagraphs deal with the hypotheses expressly covered by Article 25 of the Vienna Convention. First, the provisional application of a treaty or a part of a treaty terminates with the entry into force of that treaty in the relations between the states or international organizations concerned. Second, unless the treaty otherwise provides or it is otherwise agreed, the provisional application with respect to a state or to an international organization shall be terminated if that state or international organization notifies the states or organizations concerned of its intention not to become a party to the treaty. The next paragraph does not reflect Article 25 but bears on other rules codified in the Vienna Convention. Accordingly, unless the treaty otherwise provides or it is otherwise agreed, a state or an international organization “may invoke other grounds for terminating provisional application, in which case it shall notify the other States or international organizations concerned”. Such other grounds include the breach the provisionally applied treaty by another state. Finally, paragraph 4 confirms “that the termination of the provisional application of a treaty or a part of a treaty does not affect any right, obligation or legal situation created through the execution of such provisional application prior to its termination”. The last three guidelines (10 to 12) deal with the most complicated but practically relevant issues of relations between the provisional application of treaties and internal law of states or rules of international organizations. As a result of the thorough debate during past sessions, the Commission distinguished three different situations. Guideline 10(1) takes over the general rule, based on Article 27 of the Vienna Convention, according to which “a State that has agreed to the provisional application of a treaty or a part of a treaty may not invoke the provisions of its internal law as justification for its failure to perform an obligation arising under such provisional application”. Paragraph 2 mirrors this provision with respect an international organization and the rules of the organization. Guideline 11 replicates in para. 1, mutatis mutandis , the rule in Article 46 of the Vienna Convention concerning the competence rules of internal law. Thus, a state may not invoke the fact that its consent to the provisional application “has been expressed in violation of a provision of its internal law regarding competence to agree to the provisional application of treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Paragraph 2 provides the same for the case of a violation of rules of international organization regarding competence to agree on the provisional application of treaties. Guideline 12, in turn, makes it clear that the present draft guidelines are “without prejudice to the right of States or international organizations to agree in the treaty itself or otherwise to the provisional application of the treaty or a part of a treaty with limitations deriving from the internal law of States or from the rules of international organizations”.

8 A/CN.4/L.945/Add.1, p. 3: “The present draft guidelines are without prejudice to any question concerning reservations relating to the provisional application of a treaty or a part of a treaty.”

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