Provisional application in the US

Legal assistance paper

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Date produced: 02/12/2010

1. Can amendments to the Kyoto Protocol be provisionally applied to the US?

2. Is there an ‘expiry’ time on provisional application? If a legally binding text was agreed, but the US was technically (or politically) unable to ratify it, would it be possible to provisionally apply the text for an indefinite period, thus ‘leapfrogging’ over the formal need to ratify?

3. Could this mean that the US could use provisional application to ‘cherry pick’ some of the elements of a new agreement that could be made effective immediately, with a view to ratifying (or provisionally applying more controversial elements) in the future assuming a change in national political climate?

1. The US has not ratified the Kyoto Protocol, however a decision by the president to accept the provisional application of any amendments to the Protocol would create legally binding obligations on the US.

While not explicit, the State Department Basic Authorities Act of 1956 (22 U.S.C. 2672) authorises U.S. participation in “international activities … for which provision has not been made by … treaty”. The President does not normally seek provisional application of a treaty if compliance with the treaty obligations requires a change in US laws or requires new legislation. From a practical point of view, this is because if the provisional application of obligations is agreed to without Congressional approval, it makes it more difficult for the President to persuade Congress to ratify the Treaty or enact new legislation to comply with the international agreement “after the event”.

On rare occasions, treaties have been given provisional application in the United States in the past, without the approval of Congress. Where provisional application of treaties has occurred, the subject matter generally has fallen within the constitutionally prescribed duties of the President. In other words, provisional application of a treaty, while never challenged in a U.S. court, has not been opposed by the United States Senate where the President was entering into an agreement that was within his constitutionally delegated powers. It remains to be seen whether the President of the United States would face Senate rebuke if he were to attempt to provisionally apply a treaty that falls outside of the President’s exclusive jurisdiction.

2. The State Department Basic Authorities Act of 1956 (22 U.S.C. 2672), which authorises U.S. participation in “international activities … for which provision has not been made by … treaty”, contains the proviso that such authority is not granted for more than one year without approval of Congress. The State Department interprets this Act to allow participation on a provisional basis in succeeding years if the Congress approves a budget submission containing a line item covering the activity in question for each such year.

3. When ratifying, signing, adopting approving or acceding to a treaty there are effectively two methods by which a state can “cherry pick” its obligations. These two methods could apply equally to a provisional application.

Firstly, Article 17 of the Vienna Conventions allow a State to be bound by only part of a Treaty either where the treaty so permits, or where the contracting states agree. The second option is to ratify etc. the treaty with reservations under Article 19 of the Vienna Conventions and thereby exclude certain provisions in their application to that state. Reservations cannot be used where they are prohibited by the Treaty. The Kyoto Protocol contains a provision in Article 26 prohibiting reservations, however, the question is whether Article 26 also prevents a reservation in a provisional application, or whether that might be permitted.

The 1962 International Coffee Agreement contained a provision prohibiting reservations together with Article 64, which required notifications by the signatories of an undertaking to seek ratification or acceptance, with the understanding that those giving notification would provisionally apply the Agreement. In it’s notification, the US government declared that it could not apply two of the provisions until its Congress had passed implementing legislation. That notification was nevertheless accepted as a provisional application of the Agreement and no other states objected to the reservations.

It should be noted however that Article 20 of the Vienna Conventions also stipulates that where the application by all the parties is essential to the object and purpose of the Treaty, acceptance by all the parties will be required to the reservation. It could well be argued that the nature of the Kyoto Protocol is such that the application by all parties is essential to its object and purpose.