CYIL vol. 9 (2018)

PAVEL ŠTURMA CYIL 9 ȍ2018Ȏ part of its session, the Commission adopted on the first reading a set of 12 draft guidelines with commentaries, entitled “Guide to Provisional Application of Treaties”. 48 Guideline 1 on the scope is self-explanatory. Guideline 2 explains the purpose of the present draft guidelines which is to provide guidance regarding the law and practice on the provisional application of treaties, on the basis of article 25 of the 1969 Vienna Convention and other rules of international law. The expression “other rules” includes the 1986 Vienna Convention and rules of customary nature that may be applicable to the provisional application of treaties. 49 Guideline 3 (General rule) provides (following article 25, para. 1, of the Vienna Conventions) that “a treaty or a part of a treaty may be provisionally applied, 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.” 50 Guideline 4 deals with the forms of agreement. In addition, the case where the treaty expressly permits so, the provisional application may be agreed though a separate treaty, or “any other means or arrangements, including a resolution adopted by an international organization or at an intergovernmental conference, or a declaration by a State or an international organization that is accepted by the other States or international organizations concerned”. 51 Guideline 5, which deals with the commencement of provisional application, is modelled after article 24, para. 1, of the Vienna Convention. Guideline 6 provides that the provisional application produces a legally binding obligation to apply the treaty or a part thereof as if the treaty were in force between the States or international organizations concerned, unless the treaty provides otherwise or it is otherwise agreed. 52 Guideline 7 is a result of the report discussed in 2018 and deals with reservations. Owing to the relative lack of practice, divergent views were expressed in the Commission as to whether it was appropriate to include a provision on reservations in this context. The guideline provides that in accordance with the rules of the Vienna Convention, applied mutatis mutandis , a State may, when agreeing to the provisional application, formulate a reservation purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of that treaty. The same possibility is recognized for an international organization. 53 Guideline 8 deals with the question of international responsibility for a breach of an obligation arising under a treaty or a part of a treaty that is provisionally applied. Guideline 9 concerns the termination and suspension of provisional application. The first two paragraphs reflect the situations of the entry into force of the treaty between the States or international organizations concerned and of the notification by a State or international organization of its intention not to become a party to the treaty. Paragraph 3 envisages other situations, such as a material breach of the treaty under provisional application. As a “without prejudice clause”, it refers to the application, mutatis mutandis , of the relevant rules set forth in Part V, Section 3, of the Vienna Convention. 54

48 See doc. A/CN.4/L.920 (2018) and Add.1. 49 See doc. A/CN.4/L.920/Add.1, p. 5.

50 Ibid., p. 5. 51 Ibid., p. 8. 52 Ibid., p. 11. 53 Ibid., p. 12. 54 Ibid., pp. 14-16.

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