Delegation of the European Union
to the United Nations - New York

EU Statement – United Nations 6th Committee: Provisional application of treaties

New York, 25/10/2018 - 23:32, UNIQUE ID: 181120_20
Statements on behalf of the EU

25 October 2018, New York - Statement on behalf of the European Union by Lucio Gussetti, Director, European Commission, Legal Service, at the 73rd Session of the United Nations General Assembly Sixth Committee on Item 82: Report of the International Law Commission on the work of its seventieth session: Provisional application of treaties

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Mr/Ms Chairperson,

  1. The European Union has the honour to address the 6th Committee on the topic of provisional application of treaties, considered by the International Law Commission (ILC). 
    The Candidate Countries, the former Yugoslav Republic of Macedonia*, Montenegro*, Serbia* and Albania*, the country of the Stabilisation and Association Process and potential candidate Bosnia and Herzegovina, Area, as well as Ukraine and the Republic of Moldova, align themselves with this statement.
  2. The European Union notes that the ILC has adopted on first reading the whole set of draft guidelines on provisional application of treaties and the commentaries to them as a draft Guide on Provisional Application of Treaties and takes the opportunity to express its appreciation for the work done so far by the Special Rapporteur Mr. Juan Manuel Gomez Robledo and the ILC on this topic.
  3. The European Union also notes that the ILC has decided to transmit the draft guidelines as adopted on first reading to Governments and international organisations for comments and observations, which should be made by 15 December 2019.  The European Union highly values this opportunity and it will revert to the ILC, as appropriate.  In that respect, the European Union will limit its current intervention to making only a few remarks.

Mr/Ms Chairperson,

  1. The European Union finds the proposed outcome in the format of a Guide on Provisional Application of Treaties appropriate as it corresponds to the inherent need for flexibility on that matter.  The European Union takes note that it is anticipated that the Guide will also include draft model clauses, which would reflect the best practice with regard to the provisional application of both bilateral and multilateral treaties. While prima facie such clauses would appear to be of limited interest, the European Union is open to consider them once the ILC has finalized its work on their possible content. 
  2. The European Union has advocated throughout its interventions that the practice of States and international organisations on provisional application should also be studied as it could contribute to providing answers and guidance on the many questions that remain unanswered by Article 25 of the 1969 Vienna Convention. In that respect, the European Union notes with appreciation that the Special Rapporteur and the ILC, with the support of the Secretariat, have embarked on an extensive study of such practice and the Guide is intended to provide guidance not only on the law but also on the practice on provisional application of treaties.  In the view of the European Union, this greatly increases the authoritative value of the guidelines and their practical usefulness.
  3. The European Union welcomes that the scope ratione personae of the draft guidelines is not limited to States but also includes international organisations.  Indeed, as already indicated during previous interventions on the topic, the European Union is an actor who is actively contributing to shaping the practice in the field of provisional application of treaties. This has now been recognized by both the Special Rapporteur and the ILC, as in the reports and in the commentaries to the draft guidelines they refer on a number of occasions to treaty practice of the European Union to illustrate one guideline or another, or to come to an answer to open questions. 

Mr/Ms Chairperson,

  1. At this stage the European Union would like to make the following concrete observations on the substance of the draft set of guidelines and the commentaries to them.
  2. With respect to draft guideline 3, while the European Union fully concurs that a treaty or a part of a treaty may be provisionally applied if the treaty itself so provides, what still remains unclear from the commentaries is what would be the source of the obligation to provisionally apply such a treaty or part of it, if the consent to be bound by the clause providing for provisional application is not given upon signature. As the European Union indicated in its intervention last year, if the consent is not given upon signature, such a clause is not more than one of the provisions of a treaty not yet in force.
  3. The European Union invites the ILC to clarify whether it is considered that - if there is a provisional application clause - agreement to provisional application is always given upon signature and if so, what the basis in international treaty or customary law for such a rule is.  For example, under European Union law, the European Union may agree to provisional application in accordance with the procedure provided for in Article 218(5) of the Treaty on the Functioning of the European Union (TFEU), although the consent to be bound by the treaty is only given after the procedure of Article 218(6) TFEU is completed. Clarifying this matter would contribute to legal certainty and assist parties when deciding on provisionally applying a treaty and on what the appropriate form of their agreement would be.
  4. Furthermore, this would be useful also with respect to the matter of commencement of provisional application where in draft guideline 5 the ILC has opted for referring to “taking effect” of provisional application.
  5. Closely linked to the above is the matter of unilateral declarations as a source of an obligation to provisionally apply a treaty, which subject the European Union brought up in its last year’s intervention. The European Union notes that the ILC recognises that it is possible, although according to it the practice is “quite exceptional”, that a State or an international organisation could make a declaration to the effect of provisionally applying a treaty or a part of it when the treaty is silent or when it is not otherwise agreed. The ILC is of the view that “the declaration must  be  verifiably  accepted  by  the other  States  or  international organizations  concerned,  as  opposed  to  mere  non-objection” and while there is a degree of flexibility as to the form of acceptance, this acceptance must always be express.
  6. In that regard, the European Union would like first to bring the attention to a judgment of the European Court of Justice, in which the Court held that the declaration from the European Union, providing that it "shall issue fishing authorisations to a limited number of fishing vessels flying the flag of the Bolivarian Republic of Venezuela" in its exclusive economic zone, subject to certain conditions, must be regarded as an offer made by the European Union, which the Bolivarian Republic of Venezuela accepted by adopting a certain course of action, namely "by sending to the European Union — following the offer that had been made to it — specific applications for fishing authorisations and by refraining, when making those applications, from expressing any reservations as regards the conditions of that offer". The Court held that such concurrence of the wills constituted an agreement between the two parties, which set out reciprocal rights and obligations (Joined Cases C-103/12 and C-165/12, Parliament and Commission v Council, para 25, 60-73). Therefore, the European Court of Justice has recognized that express acceptance is not a requirement for rights and obligations to be created for the parties but that acceptance can take different forms such as relevant conduct.
  7. Second, the European Union notes that there is at least one example, cited in footnote 1021, where a unilateral declaration was used and there was not express acceptance by the other parties.
  8. In light of the above, the European Union would like to once again invite the ILC to further elaborate in the commentaries as to why the regime of unilateral acts of States could not be applied with respect to provisional application of treaties and, hence, there must always be acceptance, even more – express acceptance. This clarification would contribute to enhancing the integrity and coherence of the international legal order.
  9. The European Union takes note that the ILC is still at the initial stage of considering the question of reservations in relation to provisional application and encourages the ILC to further study the matter.  It would benefit all those using the Guide if the commentaries to draft guideline 7 clarify the effects of such reservations, including as to whether the legal effects of a reservation aimed at excluding or modifying the legal effects of certain provisions, which are provisionally applied, end with the termination of the provisional application or they could continue even after the treaty enters into force.  In the view of the European Union, their effect would end with the termination of the provisional application. 
  10. Finally, the European Union notes with appreciation that in draft guideline 9 the ILC has included a separate paragraph 3 on application “mutatis mutandis” of the relevant rules of Part V, section 3 of 1969 Vienna Convention concerning termination and suspension of treaties.  As the European Union has indicated in its previous interventions, relying exclusively on the regime for termination of provisional application provided for in Article 25, paragraph 2, of the 1969 Vienna Convention could lead to disproportionate outcomes.  The European Union welcomes that the ILC has recognized that there might be a number of scenarios not covered by Article 25, paragraph 2, of the 1969 Vienna Convention, to some of which the European Union alluded in its last year’s intervention, and, hence, confirmed that provisions pertaining to termination and suspension in the 1969 Vienna Convention may be applicable to a provisionally applied treaty.

Mr/Ms Chairperson,

  1. In conclusion, the European Union wishes to once again express its appreciation for the work done so far by the ILC on this important topic and is looking forward to continue providing its contribution to the work of the ILC and engaging in further debates on the matter in the 6th Committee.

Thank you for your attention.

 

 

* The former Yugoslav Republic of Macedonia, Montenegro, Serbia and Albania continue to be part of the Stabilisation and Association Process.

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