International Law Commission International Law Commission

Last update: September 27, 2018

Analytical Guide to the Work of the International Law Commission

Provisional application of treaties

See also: Summary | Texts and Instruments

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

  • 65th session of the International Law Commission (2013)
    • Memorandum prepared by the Secretariat
  • 67th session of the International Law Commission (2015)
    • Memorandum prepared by the Secretariat
  • 69th session of the International Law Commission (2017)
    • Memorandum prepared by the Secretariat

Reports of the Working Group or Sub-Committee

None

Reports of the Special Rapporteur

  • Introduction and discussion of the purposes and usefulness of provisional application, and consideration of the legal regime of provisional application, including a future workplan.
    • First report of the Special Rapporteur, Mr. Juan Manuel Gómez-Robledo (65th session of the ILC (2013))
  • Substantive analysis of the legal effects of the provisional application of treaties.
    • Second report of the Special Rapporteur, Mr. Juan Manuel Gómez-Robledo (66th session of the ILC (2014))
  • Analysis of the comments on State practice that were provided after the second report was submitted. Summary of the relationship of provisional application to other provisions of the 1969 Vienna Convention on the Law of Treaties. An examination of the provisional application of treaties by international organizations, as envisaged in article 5 of the 1969 Vienna Convention on the Law of Treaties, and in the light of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Proposal for six draft guidelines.
    • Third report of the Special Rapporteur, Mr. Juan Manuel Gómez-Robledo (67th session of the ILC (2015))
  • Continuation of the analysis of views expressed by Member States, the Relationship of provisional application to the other provisions of the 1969 Vienna Convention (reservations, invalidity of treaties, termination or suspension of the operation of a treaty as a consequence of its breach, State succession, State responsibility, and outbreak of hostilities); and practice of international organizations in relation to provisional application of treaties. Proposal for draft guideline 10 (Internal law and the observation of provisional application of all or part of a treaty). Examples of recent European Union practice on provisional application of agreements with third States.
    • Fourth report of the Special Rapporteur, Mr. Juan Manuel Gómez-Robledo (68th session of the ILC (2016))
  • Continuation of the analysis of views expressed by Member States. Additional information on the practice of international organizations. Consideration of (and proposal of draft guideline 8 bis on) termination or suspension of the provisional application of a treaty as a consequence of its breach. Consideration of the formulation of reservations (and proposal of draft guideline 5 bis). Discussion of amendments. Proposed model clauses. Selected bibliography.
    • Fifth report of the Special Rapporteur, Mr. Juan Manuel Gómez-Robledo (70th session of the ILC (2018))

Reports of the Drafting Committee

  • 67th session of the International Law Commission (2015)
    • Interim oral statement of the Chair of the Drafting Committee
 
  • 68th session of the International Law Commission (2016)
    • Text of the draft guidelines provisionally adopted by the Drafting Committee at the sixty-seventh and sixty-eighth sessions
    • Statement of the Chair of the Drafting Committee
  • 69th session of the International Law Commission (2017)
    • Texts and titles of the draft guidelines provisionally adopted by the Drafting Committee at the sixty-seventh to sixty-ninth sessions
    • Statements of the Chair of the Drafting Committee  (12 May 2017 and 26 July 2017)
  • 70th session of the International Law Commission (2018)
    • Texts and titles of the draft guidelines adopted by the Drafting Committee on first reading
    • Statement of the Chair of the Drafting Committee

Comments by Governments

 
 
 
 

Other

None

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its sixty-fourth session, 7 May to 1 June and 2 July to 3 August 2012
    • At its 3132nd meeting, on 22 May 2012, the Commission decided to include the topic “Provisional application of treaties” in its programme of work and appointed Mr. Juan Manuel Gómez-Robledo as Special Rapporteur for the topic.
    • At its 3151st meeting, on 27 July 2012, the Special Rapporteur presented to the Commission an oral report on the informal consultations held on this topic, under his Chairship, on 19 and 25 July 2012 (see paragraphs 144–155 of the ILC report). At the same meeting, the Commission took note of that report.
    • Also at the same meeting, the Commission decided to request from the Secretariat a memorandum on the previous work undertaken by the Commission on this subject in the context of its work on the law of treaties, and on the travaux préparatoires of the relevant provisions of the 1969 Convention on the Law of Treaties.
    • Discussion in Plenary: 3132nd meeeting (22 May 2012), 3151st (27 July 2012)
  • ILC Report, A/67/10, 2012, chap. VII, paras. 140–155
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/657)
  • Report of the International Law Commission on the work of its sixty-fifth session, 6 May to 7 June and 8 July to 9 August 2013
    • The Commission had before it the first report of the Special Rapporteur (A/CN.4/664) which sought to establish, in general terms, the principal legal issues that arose in the context of the provisional application of treaties by considering doctrinal approaches to the topic and briefly reviewing the existing State practice. The Commission also had before it a memorandum by the Secretariat (A/CN.4/658) which traced the negotiating history of article 25 of the Vienna Convention both in the Commission and at the Vienna Conference of 1968–69, and included a brief analysis of some of the substantive issues raised during its consideration.
    • Discussion in Plenary: 3185th, 3186th, 3187th and 3188th meetings, from 24 to 30 July 2013, respectively.
  • ILC Report, A/68/10, 2013, chap. VIII, paras. 108–129
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/666)
  • Report of the International Law Commission on the work of its sixty-sixth session 5 May–6 June and 7 July–8 August 2014
    • The Commission had before it the second report of the Special Rapporteur (A/CN.4/675) which sought to provide a substantive analysis of the legal effects of the provisional application of treaties. At the 3243rd meeting, held on 8 August 2014, the Commission decided to request from the Secretariat a memorandum on the previous work undertaken by the Commission on this subject in the travaux préparatoires of the relevant provisions of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986.
    • Discussion in Plenary: 3231st, 3232nd, 3233rd, and 3234th meetings (25 to 31 July 2014), and 3243rd meeting (8 August 2014).
  • ILC Report, A/69/10, 2014, chap. XII, paras. 223–248
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/678)
  • Report of the International Law Commission on the work of its sixty-seventh session 4 May–5 June and 7 July–7 August 2015
    • The Commission had before it the third report of the Special Rapporteur (A/CN.4/687), which sought to provide a substantive analysis of the legal effects of the provisional application of treaties. The Commission also had before it a memorandum (A/CN.4/676), prepared by the Secretariat, on provisional application under the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, of 1986 (“1986 Vienna Convention ”).
    • The Commission considered the second report at its 3269th to 3270th, and 3277th to 3279th meetings, held on 14, 15, 23, 24 and 28 July 2015.
    • At its 3279th meeting, on 28 July 2015, the Commission referred draft guidelines 1 to 6 to the Drafting Committee.
    • At its 3284th meeting, on 4 August 2015, the Chair of the Drafting Committee presented an interim oral report on draft guidelines 1 to 3, as provisionally adopted by the Drafting Committee at the sixty-seventh session. The report was presented for information only at this stage.
    • Discussion in Plenary: 3269th, 3270th, and 3277th, 3278th and 3279th meetings (14, 15, 23, 24 and 28 July 2015), and 3284th meeting (4 August 2015).
  • ILC Report, A/70/10, 2015, chap. XI, paras. 244–283
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/689)
  • Report of the International Law Commission on the work of its sixty-eighth session, 2 May–10 June and 4 July–12 August 2016
    • The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/699 and Add.1). The Commission considered the fourth report at its 3324th to 3329th meetings, held from 20 to 27 July 2016. At its 3229th meeting, on 27 July 2016, the Commission referred draft guideline 10, as contained in the fourth report of the Special Rapporteur, to the Drafting Committee.
    • At its 3342th meeting, on 9 August 2016, the Chair of the Drafting Committee presented the report of the Drafting Committee on “Provisional application of treaties”, containing draft guidelines 1 to 4 and draft guidelines 6 to 9, as provisionally adopted by the Drafting Committee at the sixty-seventh and sixty-eighth sessions of the Commission, respectively (A/CN.4/L.877). The Commission took note of the draft guidelines as presented by the Drafting Committee.
    • At its 3347th meeting, held on 12 August 2016, the Commission decided to request from the Secretariat a memorandum analysing State practice in respect of treaties (bilateral and multilateral), deposited or registered in the last 20 years with the Secretary-General, which provide for provisional application, including treaty actions related thereto.
    • Discussion in Plenary: 3324th, 3325th, 3326th, 3327th, 3328th, 3329th (20 to 27 July), 3342nd (9 August) and 3347th (12 August 2016) meetings.
  • ILC Report, A/71/10, 2016, chap. XII, paras. 251–300
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/703)
  • Report of the International Law Commission on the work of its sixty-ninth session, 1 May–2 June and 3 July–4 August 2017
    • At its 3349th meeting, on 2 May 2017, the Commission decided to refer draft guidelines 1 to 4 and 6 to 9 back to the Drafting Committee with a view to completing a consolidated set of the draft guidelines that had already been provisionally adopted by the Committee.
    • At its 3357th and 3382nd meetings, on 12 May and 26 July 2017, respectively, the Commission provisionally adopted draft guidelines 1 to 11, as presented by the Drafting Committee in its two reports on the topic at the session.
    • The working group established at the 3357th meeting, on 12 May 2017, to consider the draft commentaries to the draft guidelines on the provisional application of treaties held two meetings on 18 and 29 May 2017, respectively.
    • At its 3386th meeting, on 2 August 2017, the Commission adopted the commentaries to the draft guidelines provisionally adopted at the session.
    • The Commission also had before it a further memorandum, prepared by the Secretariat, reviewing State practice in respect of treaties (bilateral and multilateral), deposited or registered in the last 20 years with the Secretary-General, that provide for provisional application, including treaty actions related thereto (A/CN.4/707). The consideration of the memorandum was deferred to the next session of the Commission.
    • Discussion in Plenary: 3349th (2 May 2017), 3357th (12 May 2017), 3382nd (26 July 2017), and 3386th (2 August 2017) meetings.
  • ILC Report, A/72/10, 2017, chap. V, paras. 47–56
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/713)
  • Report of the International Law Commission on the work of its seventieth session, 30 April–1 June and 2 July–10 August 2018
    • The Commission had before it the fifth report of the Special Rapporteur (A/CN.4/718), and an addendum to that report providing a bibliography on the topic (A/CN.4/718/Add.1). The Commission also had before it the third memorandum prepared by the Secretariat (A/CN.4/707), reviewing State practice in respect of treaties (bilateral and multilateral), deposited or registered in the last 20 years with the Secretary-General, that provide for provisional application, including treaty actions related thereto.
    • At its 3402nd to 3406th and 3409th meetings, from 14 to 18 and on 22 May 2018, the Commission considered the fifth report of the Special Rapporteur and the third memorandum of the Secretariat.
    • At its 3409th meeting, on 22 May 2018, the Commission decided to refer draft guidelines 5 bis and 8 bis and the eight draft model clauses to the Drafting Committee.
    • The Commission considered the report of the Drafting Committee (A/CN.4/L.910) at its 3415th meeting, held on 31 May 2018, and adopted draft guidelines 6 [7], 7 [5 bis], 9, 10, 11 and 12.
    • The Commission then proceeded to adopt the entire set of draft guidelines on provisional application of treaties, as the draft Guide to Provisional Application of Treaties, on first Reading.
    • At its 3435th, 3437th, 3440th and 3441st meetings, on 24, 27 and 31 July and 2 August 2018, the Commission adopted the commentaries to the draft guidelines.
    • At its 3441st meeting, on 2 August 2018, the Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft guidelines, through the Secretary-General, to Governments and international organizations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 15 December 2019.
  • Discussion in Plenary: 3402nd, 3403rd, 3404th, 3405th, 3406th, 3409th (14 to 18 and 22 May 2018), 3415th (31 May 2018), 3435th, 3437th, 3440th, and 3441st (24, 27 and 31 July and 2 August 2018) meetings.
  • ILC Report, A/73/10, 2018, chap. VII, paras. 79–90

General Assembly Action

  • Resolution 67/92 of 14 December 2012
    • Noted with appreciation the decision of the International Law Commission to include the topic in its programme of work.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/657)

Final Outcome

Work in progress