Applying the Treaty

Hollis, Duncan B

doi:10.1093/law/9780199601813.003.0030

The Oxford Guide to Treaties (1st Edition)

Duncan B Hollis (ed.)

https://doi.org/10.1093/law/9780199601813.001.0001

Published:

01 July 2012

Online ISBN:

9780191787843

Print ISBN:

9780199601813

- Copyright Page
  - Notes
  - Notes
- Dedication
  - Notes
  - Notes
- Acknowledgments
  - Notes
  - Notes
- Table of Cases
  - Notes
  - Notes
- Table of Instruments
  - Notes
  - Notes
- List of Abbreviations
  - Notes
  - Notes
- List of Contributors
  - Notes
  - Notes
Introduction
- Notes
- Notes
- Notes
- Notes
- Notes
- Notes
- Notes
- Part front matter
  - Notes
  - Notes
- Initial Decisions on Treaty-Making
  - Notes
  - Notes
- Conditions on Joining a Treaty
  - Notes
  - Notes
- Constituting the Treaty and its Dissemination
  - Notes
  - Notes
- - 13. Provisional Application 13. Provisional Application
    - A. The timing of provisional application A. The timing of provisional application
      - 1. On signature 1. On signature
      - 2. On signature, absent a declaration to the contrary 2. On signature, absent a declaration to the contrary
      - 3. By declaration or notification 3. By declaration or notification
      - 4. From a specified date 4. From a specified date
      - 5. After consent to be bound, pending entry into force 5. After consent to be bound, pending entry into force
      - 6. By other means 6. By other means
    - B. Provisional application agreements beyond the treaty text B. Provisional application agreements beyond the treaty text
      - 1. By exchange of notes 1. By exchange of notes
      - 2. By separate protocol 2. By separate protocol
      - 3. By IO resolution 3. By IO resolution
    - C. Duration and termination of provisional application C. Duration and termination of provisional application
      - 1. Duration for a specified period of time 1. Duration for a specified period of time
      - 2. Termination effective on the treaty’s entry into force or a date certain 2. Termination effective on the treaty’s entry into force or a date certain
      - 3. Limitations on duration combined with options for termination 3. Limitations on duration combined with options for termination
      - 4. Withdrawal effective on notice 4. Withdrawal effective on notice
  - 14. Territorial and Extraterritorial Application 14. Territorial and Extraterritorial Application
    - A. Application to all territories A. Application to all territories
      - 1. Mandatory application 1. Mandatory application
      - 2. Mandatory application except where consent of territorial unit required 2. Mandatory application except where consent of territorial unit required
    - B. Application to specified territories B. Application to specified territories
    - C. Exclusion of non-metropolitan territory C. Exclusion of non-metropolitan territory
      - 1. Treaty limited to metropolitan territory 1. Treaty limited to metropolitan territory
      - 2. Exclusion of non-metropolitan territory on notice 2. Exclusion of non-metropolitan territory on notice
    - D. Extension to non-metropolitan territory D. Extension to non-metropolitan territory
      - 1. On notice 1. On notice
      - 2. On agreement of the parties 2. On agreement of the parties
    - E. Territorial clauses E. Territorial clauses
    - F. Extraterritorial applications F. Extraterritorial applications
      - 1. Application irrespective of territory 1. Application irrespective of territory
      - 2. Application to territory outside of State territory 2. Application to territory outside of State territory
      - 3. Application where State has jurisdiction 3. Application where State has jurisdiction
  - 15. Federal States 15. Federal States
    - A. Clauses excepting federal States from certain treaty obligations A. Clauses excepting federal States from certain treaty obligations
      - 1. Federal State clauses 1. Federal State clauses
      - 2. Clause that authorizes limited exceptions for federal States 2. Clause that authorizes limited exceptions for federal States
    - B. Differentiating federal versus non-federal State implementation B. Differentiating federal versus non-federal State implementation
      - 1. Explicitly 1. Explicitly
      - 2. Implicitly 2. Implicitly
    - C. Obligations imposed only at the ‘national’ level C. Obligations imposed only at the ‘national’ level
    - D. Clauses that deny any accommodation to federal States D. Clauses that deny any accommodation to federal States
  - 16. Relationships to Other Treaties 16. Relationships to Other Treaties
    - A. Supersession clauses A. Supersession clauses
    - B. Clauses providing for the priority of the present treaty B. Clauses providing for the priority of the present treaty
      - 1. Present treaty prevails over all treaties 1. Present treaty prevails over all treaties
      - 2. Present treaty prevails over past and future treaties 2. Present treaty prevails over past and future treaties
      - 3. Present treaty prevails over earlier treaties 3. Present treaty prevails over earlier treaties
      - 4. Present treaty prevails over IO member’s constituent instrument 4. Present treaty prevails over IO member’s constituent instrument
      - 5. Obligation to eliminate incompatibilities with respect to existing treaties with third-parties 5. Obligation to eliminate incompatibilities with respect to existing treaties with third-parties
      - 6. Future treaties must be compatible with the present treaty 6. Future treaties must be compatible with the present treaty
    - C. Clauses providing for the priority of another treaty C. Clauses providing for the priority of another treaty
      - 1. No effect on one or more other agreements 1. No effect on one or more other agreements
      - 2. Existing treaties prevail 2. Existing treaties prevail
      - 3. Future treaties prevail 3. Future treaties prevail
      - 4. Existing or future treaties giving greater benefits prevail 4. Existing or future treaties giving greater benefits prevail
    - D. Modifications and supplementary agreements D. Modifications and supplementary agreements
      - 1. Modifications permitted if compatible with the present treaty 1. Modifications permitted if compatible with the present treaty
      - 2. Modifications permitted without conditions on consistency with the present treaty 2. Modifications permitted without conditions on consistency with the present treaty
      - 3. Supplementary agreements permitted with IO’s member States 3. Supplementary agreements permitted with IO’s member States
    - E. Comprehensive treatment of relations with other treaties E. Comprehensive treatment of relations with other treaties
  - 17. Derogations 17. Derogations
    - A. Derogations based on factual conditions A. Derogations based on factual conditions
    - B. Derogations based on the purpose(s) of the behaviour B. Derogations based on the purpose(s) of the behaviour
      - 1. Based on non-precluded measures 1. Based on non-precluded measures
      - 2. Regarding acts in furtherance of essential security interests 2. Regarding acts in furtherance of essential security interests
      - 3. Avoiding acts impairing essential interests 3. Avoiding acts impairing essential interests
      - 4. Regarding the environment 4. Regarding the environment
      - 5. Based on the availability of resources or application of local law 5. Based on the availability of resources or application of local law
  - 18. Dispute Settlement 18. Dispute Settlement
    - A. Procedures involving parties themselves A. Procedures involving parties themselves
      - 1. Through consultations only 1. Through consultations only
      - 2. Through any agreed-upon means 2. Through any agreed-upon means
    - B. Procedures involving third parties B. Procedures involving third parties
      - 1. Referral to a treaty body 1. Referral to a treaty body
    - C. Binding dispute settlement C. Binding dispute settlement
      - 1. Through a treaty-specific court 1. Through a treaty-specific court
      - 2. Through arbitration at the election of one party 2. Through arbitration at the election of one party
      - 3. Through arbitration by mutual agreement 3. Through arbitration by mutual agreement
      - 4. Unilateral ICJ Referral 4. Unilateral ICJ Referral
      - 5. ICJ Referral on mutual agreement of disputing parties 5. ICJ Referral on mutual agreement of disputing parties
      - 6. Referral to arbitration or the ICJ 6. Referral to arbitration or the ICJ
    - D. Individual right to dispute settlement procedures D. Individual right to dispute settlement procedures
  - Notes
  - Notes
- Amendments
  - Notes
  - Notes
- The End of Treaty Relations
  - Notes
  - Notes
- Notes
- Index
  - Notes
  - Notes

Chapter

Applying the Treaty

Get access

https://doi.org/10.1093/law/9780199601813.003.0030

Pages

708–740

Published:

July 2012

Extract

Provisional Application

Provisional application is the agreement of some or all negotiating participants to apply one or more of a treaty’s substantive provisions in advance of the treaty’s initial entry into force (or pending its individual entry into force for those agreeing to provisional application).⁵⁰ That agreement may come in the text of the treaty to be provisionally applied or in some ‘other manner so agreed’, such as a protocol, exchange of notes, or IO resolution.⁵¹ When or how provisional application begins may vary, just as its scope may be unqualified or subject to a signatory’s constitution, laws, or regulations. Chapter 9 surveys the complex history of provisional application, its legal effects, and the recent attention the concept has received in international arbitral circles.

In practice, provisional application clauses may limit its duration (i) to a specific timeframe, which may or may not be extended, or (ii) until such time as the treaty enters into force. Article 25(2) of the VCLT provides that a party may terminate provisional application on notice ‘[u]nless the treaty otherwise provides or the negotiating States have otherwise agreed’. Thus, any right to withdraw or terminate provisional application may be conditioned on the expiration of an agreed notice period. Finally, it is important not to confuse provisional application clauses with those for provisional entry into force, which are still employed in certain contexts (eg multilateral commodity agreements) to avoid gaps in coverage among successive short-term treaties.⁵²

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Contents

Applying the Treaty