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Last update: August 9, 2017

Summaries of the Work of the International Law Commission

Provisional application of treaties

See also: Analytical Guide | Texts and Instruments

At its sixty-fourth session, in 2012, the International Law Commission decided to include the topic "Provisional application of treaties" in its programme of work, on the basis of the recommendation of the Working Group on the long-term programme of work. The Commission decided to appoint Mr. Juan Manuel Gómez-Robledo as Special Rapporteur for the topic.

At the sixty-fifth session in 2013, the Commission had before it the first report of the Special Rapporteur,1 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,2 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.

At the sixty-sixth session in 2014, the Commission considered the second report of the Special Rapporteur,3 which sought to provide a substantive analysis of the legal effects of the provisional application of treaties. In addition to considering the report, the Commission decided to request from the Secretariat a memorandum on the previous work undertaken by the Commission on the 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.

At the sixty-seventh session in 2015, the Commission had before it the third report of the Special Rapporteur,4 which considered the relationship of provisional application to other provisions of the Vienna Convention on the Law of Treaties of 1969, and the question of provisional application with regard to international organizations. 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. The Commission referred six draft guidelines, proposed by the Special Rapporteur, to the Drafting Committee.

At its sixty-eighth session, in 2016, the Commission had before it the fourth report of the Special Rapporteur,5 which continued the analysis of the relationship of provisional application to other provisions of the 1969 Vienna Convention on the Law of Treaties and of the practice of international organizations with regard to provisional application. The addendum to the report contained examples of recent European Union practice on provisional application of agreements with third States.6

Upon receipt of the report of the Drafting Committee containing draft guidelines 1 to 4 and draft guidelines 6 to 9, the Commission took note of such draft guidelines, which had been provisionally adopted by the Drafting Committee at the sixty-seventh and sixty-eighth sessions. Draft guideline 5 on unilateral declarations had been kept in abeyance by the Drafting Committee to be returned to at a later stage.7

Also at its sixty-eighth session, the Commission requested the Secretariat to prepare 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.8

At its sixty-ninth session, the Commission referred draft guidelines 1 to 4 and 6 to 9, provisionally adopted by the Drafting Committee in 2016, back to the Drafting Committee, with a view to having a consolidated set of draft guidelines, as provisionally worked out thus far, prepared. The Commission subsequently provisionally adopted draft guidelines 1 to 11, as presented by the Drafting Committee at the current session, with commentaries thereto.

The work of the Commission on the topic as described above has been proceeding in accordance with the successive resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.9

1 See document A/CN.4/664.

2 See document A/CN.4/658.

3 See document A/CN.4/675.

4 See document A/CN.4/687.

5 See document A/CN.4/699 and Add.1.

6 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), para. 255.

7 Ibid., paras. 256–257.

8 Ibid., paras. 258 and 302.

9 General Assembly resolution 67/92 of 14 December 2012; 68/112 of 16 December 2013; 69/118 of 10 December 2014; 70/236 of 23 December 2015; and 71/140 of 13 December 2016.