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.
At its seventieth session, the Commission referred draft guidelines 5 bis, 8 bis and eight draft model clauses proposed by the Special Rapporteur in his fifth report,9 to the Drafting Committee, and instructed it to complete the first reading of the entire set of draft guidelines, including those adopted provisionally at the sixty-ninth session (2017), taking into account the comments and observations of Governments and the debate in the plenary on the Special Rapporteur’s report. On the basis of the report of the Drafting Committee, the Commission subsequently adopted the entire set of draft guidelines on provisional application of treaties, with commentaries, as the “draft Guide to Provisional Application of Treaties”, on first reading. The Commission further took note of the recommendation of the Drafting Committee that a reference be made in the commentaries to the possibility of including, during the second reading, a set of draft model clauses, based on a revised proposal that the Special Rapporteur would make at an appropriate time, taking into account the comments and suggestions made during both the plenary debate and in the Drafting Committee.
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.
At its seventy-first session, in 2019, the Special Rapporteur presented an oral report on the informal consultations held on 10 and 18 July 2019 to consider the draft model clauses on provisional application of treaties. The Commission took note of the oral report and decided to annex the proposed draft model clauses to the Commission’s report to the General Assembly, with a view to seeking comments from Governments in advance of the commencement of the second reading of the draft Guide to Provisional Application of Treaties at the next session of the Commission.
At its seventy-second session, in 2021, the Commission considered the sixth report of the Special Rapporteur,10 as well as comments and observations received from Governments and international organizations.11 In his sixth report, the Special Rapporteur examined the comments and observations received from Governments and international organizations on the draft Guide, adopted on first reading, and on several of the draft model clauses proposed to the Commission at its seventy-first session. He also made proposals for consideration on second reading, in the light of the comments and observations, and proposed a recommendation to the General Assembly. Following its debate on the report, the Commission decided to refer draft guidelines 1 to 12, together with five draft model clauses, as contained in the Special Rapporteur’s sixth report, to the Drafting Committee, taking into account the debate in the Commission.12
At the same session, the Commission adopted, on second reading, the Guide to Provisional Application of Treaties, including the draft guidelines and a draft annex containing examples of provisions on provisional application. The Commission decided, in conformity with article 23 of its statute, to recommend that the General Assembly take note of the Guide to Provisional Application of Treaties in a resolution, encourage its widest possible dissemination, commend the Guide, and the commentaries thereto, to the attention of States and international organizations and request the Secretary-General to prepare a volume of the United Nations Legislative Series compiling the practice of States and international organizations in the provisional application of treaties, as furnished by the latter of the years, together with other materials relevant to the topic.13
The final Guide consists of twelve draft guidelines and a draft annex (containing examples of provisions on provisional application of treaties). The draft guidelines were as follows: guideline 1 (Scope); guideline 2 (Purpose); guideline 3 (General rule); guideline 4 (Form of agreement); guideline 5 (Commencement); guideline 6 (Legal effect); guideline 7 (Reservations); Guideline 8 (Responsibility for breach); guideline 9 (Termination); guideline 10 (Internal law of States, rules of international organizations and observance of provisionally applied treaties); guideline 11 (Provisions of internal law of States and rules of international organizations regarding competence to agree on the provisional application of treaties); guideline 12 (Agreement to provisional application with limitations deriving from internal law of States or rules of international organizations); and annex (Examples of provision of provisional application of treaties).
By resolution 76/113 of 9 December 2021, the General Assembly took note of the Guide to Provisional Application of Treaties, including the guidelines, the text of which was annexed to the resolution, brought the Guide to the attention of States and international organizations for their consideration and encouraged its widest possible dissemination. The General Assembly also requested the Secretary-General to prepare a volume of the United Nations Legislative Series compiling the practice of States and international organizations in the provisional application of treaties, as furnished by the latter over the years, together with other materials relevant to the topic.14
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.
9 See document A/CN.4/718 and Add.1.
10 Document A/CN.4/738.
11 Document A/CN.4/737.
12 Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), paras. 43-45.
13 Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), paras. 46-52.