Published: 25 February 2021 Authors: Stefan Talmon and Anneliese Quast Mertsch
The provisional application of treaties is a long-established legal mechanism that is often used by States and international organizations to give immediate effect to all or some of the provisions of a treaty prior to the completion of all internal and international requirements for its entry into force. The question of whether a treaty should be provisionally applied usually arises already at the negotiating stage allowing for a clause on provisional application to be included in the text of the treaty. However, provisional application may also be agreed upon at a later stage in some other manner. The provisional application of treaties is dealt with in Article 25 of the 1969 Vienna Convention on the Law of Treaties (1969 Vienna Convention), and in the corresponding provision of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986 Vienna Convention). The provisional application of treaties is a complex matter involving a number of legal questions that merit in-depth analysis. The International Law Commission (ILC) has studied the topic since 2012 and requested States to provide it with information on their position and practice on the topic. Germany responded twice to these requests.
In March 2014, it submitted information regarding the provisional application of treaties in the Commission’s programme of work, and on 12 December 2019 it offered comments and observations on the draft “Guide to Provisional Application of Treaties” which the ILC had adopted on first reading on 31 May 2018. The draft “Guide to Provisional Application of Treaties” comprises 12 guidelines which are to assist States and international organisations with the practice of provisional application of treaties. According to Germany, the draft guidelines are mainly based on Article 25 of the 1969 and the 1986 Vienna Conventions and leave the central importance of that provision unimpaired. They are conceived as general recommendations.
General position and practice on provisional application of treaties
In its comments and observations on the Draft Guide to Provisional Application of Treaties, Germany stated its overall position on the provisional application of treaties as follows:
“Germany supports the possibility to apply treaties provisionally because the course of actions facilitated by the provisional application of a treaty usually helps to build confidence between the contracting parties, creates an incentive to ratify the treaty and enables the parties to take preparatory measures and thereby serves the further development of international relations.”
For Germany, however, the provisional application of treaties is not a routine matter. A clause on provisional application is only included in a treaty if there is need of “urgency in regulating a certain situation”. According to the Federal Government, the majority of German bilateral agreements do not provide for provisional application. The provisional application is primarily relevant in case of multilateral treaties. German practice, however, paints a different picture. Since 1949, Germany has agreed to the provisional application of some 51 bilateral agreements but did so with regard to only 19 multilateral agreements.
Germany takes the position that a treaty may be applied provisionally either between the negotiating States, the States that have consented to the adoption of the text of the treaty, or the signatory States. Unlike Article 25 of the 1969 and 1986 Vienna Conventions, which seems to limit provisional application to negotiating States and organisations, Guideline 3 of the ILC’s draft Guide to Provisional Application of Treaties foresees provisional application between “the States or international organisations concerned”. According to Germany, “[o]pening up provisional application to non-negotiating States and international organisations is a reasonable approach as it is already contemporary practice.”
While provisional application is, as a rule, agreed in the treaty itself, Germany is also prepared to enter into such an agreement in “a separate document” at a later stage, if the need for provisional application becomes apparent only after the text of the treaty has been negotiated. In this context, Germany made reference to Protocol No. 14 to the European Convention on Human Rights of 13 May 2004. Protocol No. 14 was to enter into force after “all Parties to the Convention have expressed their consent to be bound by the Protocol”. It did not contain a clause on provisional application. By October 2006, all parties to the Convention had ratified the Protocol with the exception of Russia which, for political reasons, blocked the entry into force of the amendments to the control system of the Convention. On 12 May 2009, the Conference of High Contracting Parties to the European Convention of Human Rights agreed by consensus that certain parts of Protocol No. 14 were to be applied on a provisional basis with respect to those States that declared by means of a notification addressed to the Secretary General of the Council of Europe that they accepted the provisional application (Madrid Agreement). Germany did so on 29 May 2009. While 10 States declared their acceptance of the provisional application of parts of Protocol No. 14, other States signed a new Protocol No. 14bis. This Protocol allowed, pending the entry into force of Protocol No. 14, the application of certain elements of Protocol No. 14 with respect to those States that expressed their consent. Protocol No. 14bis required the consent of only three parties to the Convention to enter into force in order to circumvent any Russian blockade. It also expressly provided for the possibility of provisional application. It entered into force on 1 October 2009. Strictly speaking, Protocol No. 14bis was not a later agreement on the provisional application of Protocol No. 14 but a new, separate agreement providing for the application of two procedural elements of Protocol No. 14 with respect to those States that expressed their consent. In the end, both the Madrid Agreement and Protocol No. 14bis became obsolete because Russia ended its opposition and Protocol No. 14 entered into force on 1 June 2010.
According to Germany, States and international organisations are free to agree on the date on which provisional application takes effect. In German practice, provisional application usually commences upon signature of the treaty. However, provisional application may also take effect upon the adoption of the text of the treaty, upon ratification, or upon notification by the signatories that their respective internal requirements and procedures necessary for the provisional application of the agreement have been completed.
For Germany, the provisional application of a treaty automatically comes to an end upon the entry into force of the treaty. It does not require an exchange of notes with the other party or parties to the treaty. The beginning of provisional application and the entry into force of the treaty are recorded in Germany’s official bulletins, but the termination of provisional application is not. In cases of entry into force of multilateral treaties, Germany considers provisional application to continue among and vis-à-vis those States that have not yet become parties to the treaty unless they choose to terminate such application. Entry into force of a treaty is not the only way to end provisional application. Germany gives the example of ending the provisional application of a bilateral treaty by agreeing with the other State to replace the provisionally applied treaty with a new one.
Constitutional law constraints of provisional applications of treaties
Germany distinguishes between unqualified provisional application and qualified provisional application; that is, provisional application in accordance with its domestic law. Constitutional law constraints mean that in many cases unqualified provisional application of treaties is not possible. In the Federal Government’s “Guidelines for Dealing with International Agreements” it is stated:
“On the German side, an unqualified provisional application of a treaty may in principle only be agreed if the treaty neither requires parliamentary approval in accordance with Article 59 (2) of the Basic Law nor otherwise triggers a requirement for domestic implementation. Otherwise, the provisional application would constitute an impermissible interference with the powers of the legislature. […]
This question is closely linked to the question of whether there is a law required implementing the treaty. To the extent that treaty provisions trigger this requirement, they cannot, in principle, be readily applied provisionally.
In these cases, provisional application of the treaty may only be agreed if it is made subject to notification of the fulfilment of the requirements under domestic law or if provisional application is agreed “in accordance with domestic law”.
Since the phrase “in accordance with domestic law” only vaguely indicates the extent to which a treaty is to be applied provisionally, an explanation may be required in individual cases. The aim is to expressly list those provisions that are to be exempted from provisional application.”
Unqualified provisional application of treaties thus faces two constitutional hurdles: domestic implementation of the treaty provisions and parliamentary approval of the treaty.
With regard to the domestic implementation of treaty provisions, the Federal Government explained:
“In a dualist legal system like in Germany, where treaties must be transposed or incorporated into national law to become effective, it is a typical requirement of constitutional law that the competent organ may only agree to provisional application of a treaty if national law is already in conformity with the treaty or is brought into conformity with it first.”
Unqualified provisional application of a treaty is thus possible only if and to the extent that the treaty obligations are compatible with the national laws and regulations in place so that the national legal situation permits fulfilment of the treaty. This means that provisional application of a treaty requires a detailed legal evaluation of each individual provision.
Provisional application raises similar constitutional questions as the conclusion of treaties. In both cases, it is the executive that acts on the international plane and creates obligations binding on the State in international law. In order to preserve the legislative powers of the Federal Parliament, Article 59 (2) of the German Constitution – the Basic Law for the Federal Republic of Germany – prescribes that “[t]reaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law.” This imposes a twofold limitation on the Federal Government agreeing to the provisional application of treaties. First, the subject matter of the treaty to be provisionally applied must not “relate to subjects of federal legislation”; second, it must “not regulate the political relations of the Federation”. This second category comprises all “treaties of outstanding political or legal importance which govern the political relations of the Federal Republic of Germany by being of significant and immediate meaning for the existence of the State, its territorial integrity, or its independence.” Treaties containing compulsory dispute settlement clauses would be a case in point. The Federal Government explained:
“Article 59(2) of the Basic Law of the Federal Republic of Germany provides that a treaty requires parliamentary approval if it touches upon matters that, under the constitutional distribution of powers, are to be decided by the legislature. Hence, in cases where parliamentary approval is required, Germany will be reluctant to agree to unlimited provisional application, even if compliance technically would not pose a problem. Instead, clauses providing for ‘the provisional application in accordance with domestic legislation’ will be included, the respective clause both indicating that provisional application might be limited and, in fact, limiting provisional application to those provisions of the treaty with which the German legal framework is compatible or for which parliamentary approval is not required.”
According to its constitutional law, Germany can agree to unqualified provisional application from the time of signature of the treaty only if no adoption or change of domestic legislation is necessary in order to implement the treaty; that is, if it can be implemented by way of administrative action, and if no parliamentary approval of the treaty is required. This, however, leaves the option of unqualified application from the time of ratification of the treaty after the Federal Parliament has approved the treaty. For example, on 3 June 2013 Germany signed the Arms Trade Treaty (ATT) which required ratification by 50 States to enter into force. Article 23 of the Treaty provided that “[a]ny State may at the time of signature or deposit of ratification, acceptance, approval or accession, declare that it will apply provisionally Article 6 and Article 7 pending the entry into force of this Treaty for that State.” After the Federal Parliament had adopted a law approving the ATT, the Federal Government deposited its instrument of ratification on 2 April 2014. At the same time, it issued a declaration on the provisional application of Articles 6 and 7 of the ATT.
Constitutional law does not stand in the way of qualified provisional application. By attaching a so-called “limitation clause”, limiting provisional application to those provisions of a treaty which are in line with its domestic law and do not require parliamentary approval, Germany is able to shield its constitutional order. In cases of conflict between treaty obligations and domestic law, there will be no provisional application either in domestic or international law.
While in international law Germany may not invoke the provisions of its internal law as justification for its failure to perform an obligation arising under provisional application of a treaty, within the German legal order, constitutional law and later statutes, on the basis of the lex posterior principle, take precedence over treaties, including provisionally applied treaties. Germany therefore welcomed the ILC’s approach in Guideline 12 of the draft Guide to Provisional Application of Treaties, which allows States “to agree in the treaty itself or otherwise to the provisional application of the treaty or a part of the treaty with limitations deriving from the internal law of the State or from the rules of the organization.” If such an agreement is reached, in cases of conflict, Germany’s internal law will prevail even at the international level.
Legal Effect of provisional application in international law
Provisionally applied treaties have not yet entered into force. There have therefore been some questions about the legal effect of provisional application; in particular, whether provisionally applied treaties are legally binding. Germany – together with the majority of States – takes the view that provisional application imposes a binding legal obligation to perform the treaty or a part thereof as if the treaty were in force between the States or international organizations concerned, stating:
“While there are several necessary differences between provisional application of a treaty and its entry into force, there are also similarities, namely that a treaty provisionally applied is binding and enforceable. The principles of pacta sunt servanda and of good faith shall apply to provisional application as much as the principle of holding a State or an international organization accountable in case of a breach of an obligation arising under the treaty or a part thereof being provisionally applied. These legal effects are inherent to provisional application so as to flank the unfolding of the legal effects of the treaty as early as possible.”
Any breach of a treaty by a State having agreed to apply it provisionally entails the international responsibility of that State. Provisional application and entry into force of a treaty must not be equated, however. The provisional nature of the State’s consent “is secured by the possibility to unilaterally withdraw a declaration of provisional application.”
Germany’s position that it is “inherent to provisional application” to create binding legal obligations differs from that of the ILC, which in Guideline 6 of the Draft Guide to Provisional Application of Treaties leaves open the possibility that the treaty may provide otherwise or that the parties may agree otherwise. The ILC takes into account the practice of some States which have agreed in certain cases that a provisionally applied treaty is not creating binding legal obligations but only political commitments (soft law).
Following on from its stance that provisional application creates binding legal obligations, Germany concurred in the application, mutatis mutandis, of the rules in Articles 27 and 46 of the 1969 and 1986 Vienna Conventions to provisionally applied treaties, precluding States from relying on their internal law as a justification for the failure to perform their obligations under these treaties or calling into question their consent to apply the treaty provisionally. In practice, these rules, however, are only of relevance if there is no or only a limited limitation clause in the agreement on provisional application. If there is a broad limitation clause, encompassing both constitutional law and domestic legislation, there is no need to rely on these rules, as the provisional application of the treaty is already subject to the State’s internal law.
Provisional application of mixed agreements
The question of provisional application was of particular importance to Germany in the context of so-called “mixed agreements” because of its membership of the European Union (EU). Mixed agreements are bilateral treaties between the European Union and its Member States, on the one side, and a third party – a State or international organisation – on the other side. The EU and its Member States must conclude such agreements together, if the subject matter of the agreement touches both on powers or competencies exclusive to the EU and on competencies exclusive to the Member States; that is, it is of mixed competency. In such a situation neither the EU nor the Member States can conclude the treaty on its own. For example, in the case of free trade agreements the legislative power rests partially with the EU and partially with its Member States. The Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the EU and its Member States, of the other part, is an example in point. Such agreements, as a rule, tend to be applied provisionally because of the number of actors involved and their different – and at times prolonged – national ratification procedures.
The division of competence between the EU and its Member States also impacts the agreement of provisional application of mixed agreements. With regard to the provisions of the treaty falling within the competence of the EU, provisional application is authorized by a decision of the Council of the EU – the EU organ representing the governments of the Member States – under Article 218(5) of the Treaty on the Functioning of the European Union (TFEU). With regard to the treaty provisions within the competence of the Member States, provisional application depends on the constitutional requirements in each Member States. In Germany, provisional application may require the involvement of the Federal Parliament. The EU and its Members States thus do not necessarily decide on the provisional application of a mixed agreement at the same time or in a uniform way. This may lead to a divergence of provisional application with regard to the various treaty provisions.
According to Germany, the “treaty type of mixed agreements is apt to modify the residual character of Article 25 of the 1969 Vienna Convention on the Law of Treaties as a default rule by relieving, in part, the provisional application tool from the hands of the negotiating States.” In its comments and observations submitted to the ILC in 2019, Germany addressed the following questions with regard to the provisional application of mixed agreements: (1) internal law and competence to agree to provisional application; (2) partial provisional application; (3) reservations to provisional application; and (4) termination and suspension of provisional application.
(1) Internal law and competence to agree to provisional application: Guideline 11 of the draft Guide to Provisional Application of Treaties applies Article 46 of the 1969 and 1986 Vienna Conventions to provisional application, stating that a State or international organisation may not invoke the fact that its consent to the provisional application of a treaty or a part of a treaty has been expressed in violation of a provision of its internal law or the rules of the organisation regarding competence to agree to the provisional application of treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. Germany in fact conceded that in case of mixed agreements the requirement of “manifest violation” would be difficult to meet. It noted that there were “potential conflicts and unsettled legal qualifications” with respect to the division of competence between the EU and its Member States. A third party could hold that it was not objectively evident whether the rules of the EU on the division of competence between the Union and the Member States had been violated or not. In cases where the EU acted ultra vires by agreeing to the provisional application of a treaty without having the competence to do so, this would lead to a situation where Member States were bound to apply a treaty provisionally or face liability.
(2) Partial provisional application: Both Article 25 of the 1969 and 1986 Vienna Conventions and Guideline 3 of the draft Guide to Provisional Application of Treaties foresee the possibility of applying merely a part of the treaty provisionally. Clauses expressly limiting provisional application to certain clearly defined treaty provisions are often used in mixed agreements. Germany highlighted the importance of partial provisional application in this context, stating:
“The importance of this provision [Guideline 3] for Germany results from its domestic legal requirements, particularly with regard to its membership in the European Union. Limited provisional application occurs frequently in so-called mixed agreements between the European Union and its Member States on the one hand and a third party on the other hand. […] [T]he case may occur that those selected parts of a mixed agreement, which fall under the competence of the European Union, will become provisionally applicable, while those clauses of the mixed agreement subjecting the provisional application to the requirements of national law do not.”
In cases of provisional application of mixed agreements, it is therefore necessary to define which treaty provisions fall under the competence of the EU and which fall under the competence of the Member States in order “to ensure maximum clarity as to which parts of the agreement are subject to provisional application.”
(3) Reservations to provisional application: In Guideline 7 of the draft Guide to Provisional Application of Treaties the ILC stipulated that a State or international organisation “may, when agreeing to the provisional application of a treaty or a part of a treaty, formulate a reservation purporting to exclude or modify the legal effect produced by the provisional application of certain provisions of that treaty.” Germany pointed out that there was a lack of relevant State practice concerning reservations in the context of provisional application and also that there was no clear delimitation between reservations to provisional application and the provisional application of merely a part of the treaty.
Germany nevertheless suggested that reservations to provisional application may have a role to play in the context of mixed agreements. It even contended that mixed agreements would probably be the main area of application of Guideline 7. This may be explained as follows. Due to the complex division of competences between the EU and its Member States, disputes may arise whether a particular subject-matter covered by a mixed agreement is within the competence of the EU. In such a situation, the decision by the Council of the EU on the provisional application of the EU part of the treaty may qualify as an ultra vires act and may infringe the constitutional order of the Member States. The German Federal Government’s approval of such a decision on provisional application within the Council of the EU may be challenged before the Federal Constitutional Court. In case the Council decision on provisional application does not require the approval of all Member States, or Germany is otherwise unable to secure the exemption from provisional application of treaty provisions that raise constitutional concerns, making a reservation to provisional application of those provisions may provide Germany with a safeguard to protect its constitutional order. Reservations would allow individual EU Member States to exclude or modify the legal effect produced by the provisional application of certain controversial treaty provisions while the EU and other EU Member States are prepared to apply them provisionally. The possibility of making reservations to provisional application may be of particular practical importance in cases where a preliminary injunction is sought from the Federal Constitutional Court that would bar the German representatives in the Council from lending their approval to the provisional application of a treaty that may be ultra vires on the part of the EU. Such a preliminary injunction could result in the Council not being able to authorise the provisional application of the treaty. The consequence would be the failure – at least preliminarily – of the entire treaty. This consequence could be averted by the Federal Constitutional Court requiring the Federal Government to make a reservation to the provisional application of the controversial treaty provisions in order to safeguard the constitutional order.
The use of reservations to the provisional application of particular treaty provisions may become practically relevant if the EU and the Member States do not want to include a limitation clause in the agreement on provisional application in order not to allow the other party to rely on its internal law as justification for not performing its obligations under the provisionally applied treaty. The same may be true for the third party. In such a situation, reservations provide the parties with a possibility to protect their constitutional order in a specific, transparent, and limited way. Any application mutatis mutandis of the rules on reservations to provisional application would however raise the question of their compatibility with the object and purpose of the treaty or its provisional application.
(4) Termination and suspension of provisional application: Both Article 25 (2) of the 1969 and 1986 Vienna Conventions and Guideline 9 (2) of the draft Guide to Provisional Application of Treaties provide that the provisional application of a treaty or a part of a treaty shall be terminated upon notification of the intention not to become a party to the treaty. According to Germany, such a notification “has only an ex nunc effect”, meaning that it does not have any retroactive effect. The above provisions do not cover the situation that a State or an international organisation may only wish to terminate provisional application, but still intend to become a party to the treaty at a later stage. Another situation not covered is that of material breach of a multilateral treaty, where termination or suspension of provisional application is to be limited to the State or international organisation that committed the material breach, while continuing to provisionally apply the treaty in relation to other parties, or where the suspended provisional application of the treaty is to be resumed after the material breach has been adequately remedied. With regard to these situations, Germany argued for complete freedom to terminate and suspend provisional application, stating:
“[P]rovisional application and entry into force of a treaty must not be equated. The provisional nature is secured by the possibility to unilaterally withdraw a declaration of provisional application. […] Germany holds that a notification about the intention not to become a party to the treaty is not required for the termination of the provisional application.”
Germany therefore objected to Guideline 9 (3) applying, mutatis mutandis, the stricter rules on termination and suspension of the operations of treaties in Part V, Section 3 of the 1969 and 1986 Vienna Conventions to the provisional application of treaties. It argued that the application of these regulations would “result in a de facto equal status of provisional application and entry into force of a treaty.” Germany’s objection was made clear in a subtle way by the wording chosen. Unlike with other guidelines in the ILC’s draft Guide to Provisional Application of Treaties it did not “concur with the approach” of the guideline but only with its “inclusion”.
Germany’s position with regard to termination and suspension of provisional application must be seen against the background of its EU membership and the practice of the conclusion of mixed agreements by the EU and its Member States. The retention of the right unilaterally to terminate the provisional application of a treaty at will supports Germany’s claimed discretion to withdraw its consent in the Council of the EU to the provisional application of the EU part of a mixed agreement. Such a withdrawal of consent may become necessary if, after the Council of the EU decided to apply a treaty or a part thereof provisionally, assuming it belonged to the exclusive competence of the EU, it turns out that in fact it lies within the competence of the Member States. In fact, under German constitutional law the Federal Government is obliged to ensure that it can unilaterally withdraw its authorisation in the Council to provisional application, if it is disputed whether a certain part of the treaty falls within the competence of the EU or of its Member States. Furthermore, in cases in which its constitutional identity could be affected it is essential for Germany to be able to withdraw from provisional application unilaterally without needing to state expressly that it does not intend to be become a part of the treaty. While German constitutional law may necessitate the freedom to unilaterally terminate the provisional application of treaties, there seems to be no support in State practice for such a sweeping rule in international law.
Category: Law of treaties