Provisional application in Australia

Legal assistance paper

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Date produced: 17/05/2012

Is there any constitutional or legal impediment to Australia applying a CP2 of the KP provisionally?

Article 25 of the Vienna Convention on the Law of Treaties sets out a procedure by which treaties can be applied provisionally before entry into force. That is, it envisages a situation where the parties to a treaty could agree that a treaty will be provisionally in force before it has officially entered into force. In the Australian instance, that would usually mean immediately after signature but before consideration by Parliament.

Provisional application of treaties is not explicitly or implicitly allowed (or not allowed) by Australia.

Australia has adopted the position that the Joint Standing Committee on Treaties (JSCOT) shall review and report on all treaty actions proposed by the Government before action which binds Australia to the terms of the treaty is taken.

The treaty making process requires all treaty actions proposed by the Government to be tabled in Parliament along with a National Interest Assessment (NIA) for a period of at least 15-20 sitting days, during which time the proposed treaty action is subject to an inquiry and report by the JSCOT. The treaty text, NIA and associated documents will also be published and the public is able to make comments on the proposed treaty action (which may be through public hearings). At the completion of the review, JSCOT reports to Parliament with advice on whether Australia should take binding treaty action and other related issues that arise during the review.

As a general rule, all treaty actions will follow the JSCOT process. The one exception is whether the Minister for foreign affairs certifies that a treaty is particularly urgent or sensitive, involving significant commercial, strategic or foreign policy interests.

By way of example of the consideration of provisional application of treaties in Australia, although a number of countries have agreed to provisionally apply the Energy Charter Treaty, Australia filed a declaration to the effect that it was “not able to accept provisional application” (this was expressly allowed by Article 45(2) of the Treaty).

Australia was prepared to accept provisional application of the Agreement Relating to the Implementation of Part 11 of the United Nations Convention on the Law of the Sea (UNCLOS) on the basis that there were compelling reasons to do so. However, ultimately the JSCOT process was completed before Australia had to adopt provisional application.

JSCOT applies to any proposed “treaty action”, which will include new treaties and amendments to existing treaties (such as those required to establish a second commitment period under the Kyoto Protocol). The key issue will be whether there are compelling reasons to bypass the JSCOT process (e.g. urgency / sensitivity / foreign policy reasons).