Provisional Application of Treaties and domestic constitutional concerns

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 11/12/2009

Are there any barriers in national or international law to the provisional application of amendments to a protocol?  National jurisdictions in which we are particularly interested are Australia, US, Canada, Japan, Russia, Norway, Switzerland and if possible Belarus, Kazakhstan, Turkey, Austria and other EU member states so far as possible.  Have these countries accepted provisional application in any other treaties?

Summary

Although we have not had the opportunity to review the constitutionality of the provisional application of treaties in each of the jurisdictions listed above, we note that each of the countries mentioned have previously, in various arenas, accepted the provisional application of a treaty. This would suggest that arguments against an outcome (ie treaty or new protocol) in Copenhagen being provisionally applied are political rather than legal or constitutional.

Advice

Vienna Convention on the Law of Treaties

Article 25 of the Vienna Convention on the Law of Treaties (VCLT) provides for the provisional application of treaties if the treaty so states or if the negotiating States have otherwise agreed:

“1.          A treaty or a part of a treaty is applied provisionally pending its entry into force if:

(a) the treaty itself so provides; or

(b) the negotiating States have in some other manner so agreed.

2.            Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.”

The approach taken

Given the time constraints and our lack of lawyers in most of the jurisdictions listed in the query, we have been unable to research extensively on the domestic constitutional requirements regarding the provisional application of treaties. However, where we have been able to provide this, this is included below.

Instead, we have taken the approach of determining whether any of the countries listed in the query have previously agreed to provisionally apply a treaty pending its formal entry into force. If a country has provisionally applied a treaty in the past, it is likely that present arguments put forward by the countries as to why a new treaty could not be applied to them are political rather than legal.

The most well known of the treaties that has been provisionally applied in the past is the General Agreement on Tariffs and Trade. We include reference to one other treaty where parties have provisionally applied its terms, but there are plenty of others as well.

The General Agreement on Tariffs and Trade (GATT)

As regards the GATT, the position is quite clear. The GATT only entered into force, on 1 January 1948, through a Protocol of Provisional Application, signed on 30 October 1947.  This was done to make the agreement applicable, whilst awaiting the ratification of the ITO Charter, which would have made the GATT obligations permanent. However, the ITO Charter never got past the US Congress, and the GATT continued to be applied, pursuant to this Protocol of Provisional Application, from 1 January 1948 to 1 January 1995, when the WTO Agreement entered into force. In the intervening period many countries joined the GATT, each concluding a Protocol of Accession with similar effect as the Protocol of Provisional Application.

The list of GATT members which applied the GATT “provisionally”, up to 1995, can be found at http://www.wto.org/english/theWTO_e/gattmem_e.htm . As you will see, Australia, the US and Canada were all original signatories of the Protocol.  Norway joined later in 1948; Switzerland, Japan, Turkey and Austria also signed up to the GATT, at later stages. Belarus, Kazakhstan and Russia are not current WTO members, and never signed the GATT.

The signatory States to the GATT generally complied with its provisions. In the event of a breach of the GATT, the reports (or rulings) of the dispute settlement mechanism developed by the GATT (where a panel examined the dispute in question) were also generally complied with.

By way of example, in the US, the GATT was concluded by the President as an executive agreement.

The Agreement establishing an International Science and Technology Centre (AISTC)

Pending the formal entry into force of the AISTC in 1994, a protocol on the provisional application of the AISTC was entered into by various states. Contracting parties included Belarus, Kazakhstan, Norway, the US and Russia.

The 1994 Energy Charter treaty

At the time of signature, each contracting party to the 1994 Energy Charter Treaty was given the option under article 45(2) of filing a declaration to the effect that it was “not able to accept provisional application”.

Australia made a Declaration under Article 45(2)(a) of the Energy Charter Treaty stating that it had constitutional difficulties in signing up to provisional application.

 The following countries also made similar declarations: Iceland, Japan, Malta, Norway and Poland.

Constitutionality of provisional application clauses

General

Currently we do not think there are any constitutional amendments or constitutional law developments in the countries listed which may affect the question whether the provisional application of a treaty raises constitutional difficulties.

Generally speaking, we cannot really see what the problems concerning provisional application could be. Art 25 VCLT recognises that treaties may be provisionally applied.  Under domestic constitutional law, countries of course each have their particular procedures and decision-making processes for expressing consent to be bound by a treaty, and they may have particular rules on provisional application.  But as countries are capable of entering into definitive international commitments, it is difficult to see any reasons for a constitutional rule which makes provisional application impossible. The fact that most countries in the world have previously agreed to provisionally apply certain treaties seems to support this view.

European Union

In a European context, we have never come across any such difficulties.  The EU is very accustomed to applying treaties or international agreements provisionally. This is often the case where it concludes a so-called mixed agreement, to which not only the EU but also all the Member States are parties. Such treaties or agreements need to be ratified by all Member States, and as this may require quite a bit of time, the EU has developed the practice of provisionally applying such agreements.

The Treaties of the EU expressly refer to this practice: Article 218(5) TFEU (the successor, post-Lisbon, to Article 300(2) EC) provides: “The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force”.  We suspect any agreement resulting from the Copenhagen process will also be concluded as a mixed agreement by the EU and its MemberStates, which means that this provision could be applied, and that, in a European context, provisional application is possible.

USA

In the United States, there is no absolute prohibition against the President agreeing to apply an agreement provisionally, but the President would not normally do so if compliance with the obligations required a change in US laws or required new legislation.  That is because as a matter of US law, an agreement that the United States is applying provisionally does not supersede prior inconsistent federal laws, even though it “binds” the United States as a matter of international law.

Further, because provisional application is done without Congressional approval, it can make it much more difficult for the President to persuade Congress to enact laws needed to comply with an agreement that has not been approved in any way by the US Congress.

PLEASE NOTE: the author of the original advice on the US position has noted: “[This] summary of my response on provisional application did not seem to me accurate.  There are definite legal obstacles to at least US provisional application of some kind of obligations; it is just that they are domestic legal obstacles rather than international law barriers. But this is not something that can be overcome just by the President taking a political decision.”