Temporary protocols

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Date produced: 05/08/2010

Is it possible to put a ‘time limit’ on a protocol?  Has this been done in the past, either with protocols or with other agreements (as to distinguish between legal agreements and political agreements)?

Yes, this is possible. In principle, Parties negotiating a treaty text are free to regulate the duration and termination of the treaty under consideration as they wish. It is only when no express rules are included that the residuary provisions of the Vienna Convention on the Law of Treaties (1969) apply. This is true both for regular ‘treaties’ as well as ‘Protocols’. The label ‘Protocol’ merely signals that the instrument is subsidiary to an overarching framework Convention. Otherwise, its legal value is the same as that of the parent instrument.

Admittedly, most treaties (including protocols), especially multilateral treaties, are concluded for an indefinite period of time. However, on occasion, Parties agree to have the treaty end after a certain period of time or after a specific event (e.g., the Agreement between Egypt and the UN on the Status of the UN Emergency Force 1957 provided for it to remain in force until the departure of UNEF from Egypt; the UK-USSR Exchange of Notes on Inspection Rights relating to the INF Treaty 1987 was entered into for 13 years from the entry into force, with no provision for termination or extension).

There is no reason why a Protocol could not be adopted for a limited period of time. It may be observed in this context that in 1957, States included the ‘Protocol for extending the period of validity of the Convention on the Declaration of Death of Missing Persons’ (http://treaties.un.org/doc/Treaties/1957/01/19570122%2008-49%20AM/Ch_XV_2p.pdf). The Convention was originally concluded for a period of 5 years (from entry into force); the Protocol added a further period of 10 years.

Finally, regarding the comments to this query, it has to be underlined:

  • that in international agreements (named either ‘treaty’, or ‘convention’, or ‘protocol’ etc.), as in private contractual agreements, parties are free to agree on merging such agreements if certain conditions that they fix beforehand are met; and
  • that in order to have a certain (long term) time frame, a protocol (or treaty) is to be preferred over a COP decision – indeed there is a risk that if the legal basis for the COP decision disappears, the COP decision would cease to have legal effect.