Provisional application (Germany, Poland, Switzerland)

Legal assistance paper

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Date produced: 30/11/2012

Could Germany, Poland and Switzerland apply the Kyoto Protocol on a provisional basis under their domestic law?

Germany

In accordance with Art. 59 (2) of the German Constitution (the ‘Grundgesetz’ or Basic Law), a formal law must be adopted by the German Parliament in order to ratify an international agreement (often referred to as a “Ratification Act”). By its nature, a Ratification Act refers to an international agreement and thus, the dates of entry into force of the international agreement in question would also be decisive for when the international agreement would enter into force in Germany.

While the German Constitution does not explicitly address provisional application, it does not prevent the State from entering into an international treaty which will have to be applied provisionally. Such agreement between states, however, is considered to be a treaty itself. Thus, it would again require approval by the German Bundestag – the parliament.

In certain cases, the Bundestag may give the Bundesregierung (German Federal Government) general permission to enter into a treaty, even before the final version of the treaty is known, or – which is quite common – the Bundestag may give permission to agree to a provisional application of the treaty by adopting a respective federal law. The German Bundestag could also approve, provisional application, if the parties want the treaty to enter into force immediately upon signature. Such a mechanism was, for example, applied when concluding the treaties for the German reunification, with regard to the integration of the former German Democratic Republic into legal system of the European Union.

Thus, there are basically two scenarios for provisional application under German law:

• The international treaty has not yet entered into force, but the provisions of the treaty have already been adopted in Germany by way of federal law, or

• the international treaty has entered into force on the international level and Germany has adopted its provisions by way of federal law, but has not yet ratified the treaty itself.

The requirement to approve a specific treaty amendment by a federal law could also be indirectly avoided if a general authorisation was given to the Bundesregierung (German government) by parliament allowing it to issue regulations (i.e. rules on a lower level than a federal law). However, this authorisation would again need to result from a prior federal law. As regards the Kyoto Protocol, the federal law transforming the Protocol to German law does provide for such an authorisation for technical or administrative changes pursuant to Articles 18, 20 and 21 of the Kyoto Protocol.

Hence, in order to apply the Kyoto Protocol provisionally, it appears the parliament’s approval would be required.

Poland

There are no provisions within the Polish legal system specific to provisional acceptance of international law. The Republic of Poland recognizes the Vienna Convention on the Law of Treaties, including the provisions concerning provisional acceptance (Article 25). This Convention is ratified, and therefore a part of the Polish legal system.

The Polish government cannot act in regulatory or otherwise authoritative capacity over non-government entities without specific authorization granted by the Parliament in a form of an Act (rule of legalism resulting from Polish Constitution). However, workings and politics of government institutions are regulated by means of internal regulations issued by the ministers (please note this is a greatly simplified summary).

International law commonly recognizes chief of cabinet, president and minister of foreign affairs of any given country as capable of making binding declarations on behalf of this country.

With all of the above in mind it is, in our opinion, possible for the government authority to provisionally accept the changes to the Kyoto protocol.

However, until such acceptance is ratified formally in the way specified by the Constitution (and therefore the amended protocol is officially introduced into the Polish legal system) it will have no effect on non-governmental entities. For example: though politics of e.g. ministry of industry can change to accommodate the new protocol, it cannot be the basis for e.g. fines or taxes for industrial CO2 polluters.

To summarize, any provisional acceptance of the changes to the Protocol is effectively limited to changes that can be applied within the realm of internal workings of government institutions without additional cost or obligations to the taxpayer.

Switzerland

The Swiss Government and Administration Organisation Act (“Regierungs- und Verwaltungsorganisationsgesetz” as amended by the Federal Law on the Provisional Application of International Agreements of 8 October 2004 and in force since 1 April 2005) in Article 7 paragraph b (on the provisional application of international treaties by the Federal Council “Vorläufige Anwendung völkerrechtlicher Verträge durch den Bundesrat”) provides that:

1. If the Federal Assembly is responsible for the approval of an international treaty, the Federal Council may decide or agree on its provisional application if this is necessary to safeguard important interests of Switzerland and a matter of particular urgency.

2. Provisional application shall terminate if the Federal Council fails to submit the draft federal decision on the ratification of the relevant international agreement to the Federal Assembly within six months from the date of the provisional application.

3. The Federal Council shall notify the other parties about the end of the provisional application.

Article 7 reflects the concept of provisional application contained in Article 25 of the Vienna Convention on the Law of Treaties. (Like the Vienna Convention, it also does not address the application of a treaty amendment). Accordingly, the government of Switzerland (the Federal Council) would be entitled to agree to the provisional application of an treaty without the approval of parliament, (the Federal Assembly) if this is required to protect the national interest and, in addition, is particularly urgent. While the expiration of the first Kyoto commitment period by the end of 2012 indicates a degree of “urgency”, the question whether the need to tackle climate change through a second Kyoto Protocol commitment period is “important” enough to (temporarily) circumvent the prerogative of the national parliament is open to interpretation.