Can the EU and its Member States provisionally apply an adopted ratifiable second commitment period?
[As will be seen from the Table below] We have found examples for each of the twenty-seven EU Member States where they have provisionally applied treaties.
We emphasize a caveat regarding Parties’ domestic law position. For reason of lack of resources, we have not looked into the domestic law of any particular country and what their constraints may be.
Whether a State is entitled to provisionally apply a treaty pursuant to its domestic law is separate from (but of course politically related to) whether the State can bind itself under international law by way of provisional application. The domestic law issue may make a State less willing to use provisional application, but does not mean, on the international plane, that they cannot use it as a tool. A State can bind itself on the international plane without domestic approval, but the issues agreed would not necessarily become binding at the domestic level). However, whether a State official would be willing to bind the State without specific domestic approval is a matter of political will.
If the EU Member States claim that they cannot bind themselves provisionally in Durban because they do not have domestic parliamentary or legislative approval, one option may be for the CMP to adopt a Decision stating that all Parties should obtain necessary domestic approvals over the next twelve months so as to be in a position to provisionally apply a second commitment period under the Kyoto Protocol by COP18-CMP8, with provisional application being effective as from 1 Jan 2013.