GeneralAssembly/6C: Statement by Legal Advisor Ambassador Ney on Provisional Application of Treaties

Nov 4, 2013

"Madam Chairwoman/Mr Chairman,  

Germany would like to thank the International Law Commission for having included the important topic of provisional application of treaties in its programme of work and also to express our support for the first report of Special Rapporteur Juan Manuel Gómez-Robledo.  

Germany welcomes his approach to the topic, which is of great practical relevance today. The provisional application of treaties as provided for in Article 25 of the VCLT is a valuable tool which has been increasingly used over the years. 

Provisional application is a flexible tool. States may decide to limit the extent of provisional application to certain parts of a treaty only. This has been done in many treaties concluded with Germany’s participation. In that case, the extent of provisional application is determined either in the treaty itself or in the instrument containing the agreement on provisional application.

In some cases provisional application has permitted some of the negotiating States to go ahead and put into effect some of the treaty’s intentions while allowing others to take their time, and possibly evaluate the functioning of a nationally disputed treaty project. The wide use of provisional application in multilateral and bilateral treaties demonstrates how useful this tool and its flexibility are for States.  

In many States - including Germany – constitutional and internal law determine to what extent provisional application of a treaty can be agreed to, or to what extent a treaty may be provisionally applied. States have found several ways to agree on provisional application of a treaty taking into account such constitutional requirements. 

It is Germany’s understanding that the provisional application of a treaty means that its rules will actually be put into practice and will govern the relations between the negotiating States, i.e. the prospective Parties - to the extent that provisional application is agreed. At the same time, provisional application in itself is not in any way the expression of a consent to be bound nor does it lead to an obligation to declare consent to be bound.

An in-depth analysis of State practice and case law regarding the legal effect of provisional application of treaties, as provided for in Article 25 of the VCLT, will prove most valuable. 

I very much look forward to the ILC’s further contribution to this important topic in international treaty relations."

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