Withdrawing Provisional Application of Treaties: Has the EU Made a Mistake?

Abstract

It is a common practice, recognized by Article 25 of the Vienna Convention on the Law of Treaties (VCLT), for negotiating parties to a treaty to apply some or all of the provisions of the treaty provisionally prior to the treaty's entry into force.1 Sometimes, if the treaty never comes into force, it can operate on the basis of provisional application for many years. The General Agreement on Tariffs and Trade (GATT) is a stand out example. This agreement, signed in 1947, was intended to apply on a provisional basis for only a few years, until the framework International Trade Organization came into force. However, when the GATT failed to gain favour in the US Congress, the ITO was abandoned, and the GATT continued as a provisionally applied agreement until 1995, when it was replaced by the World Trade Organization. The practice of provisional application presents numerous theoretical and practical difficulties, and the inclusion of Article 25 into the Vienna Convention was not uncontroversial.2 One problem is that, the practice can bypass normal democratic controls on the treaty-making process. Some countries guard against this possibility, for example by subjecting provisional application to the same procedures as treaty ratification.3 Other legal systems are more flexible. The European Union, for example, expressly authorises the EU Council to