Who’s Afraid of Provisional Application?

2 December 2011

If only we could apply climate change provisionally!

For the last couple of days, we have heard a number of developed countries make allusions to constitutional concerns about provisional application of the amendment for a second commitment period under the Kyoto Protocol.

While commending these parties for continued support of a multilateral, legally binding, rules-based regime, we are nonetheless confused.

ECO keeps a copy of the Vienna Convention on the Law of Treaties by its bedside (for those restless nights after the informals) and has the impression that provisional application is a widely used tool of international law.

A quick Google search confirmed this and there are a slew of examples in which provisional application has been used, such as:

* The 1994 United Nations International Tropical Timber Agreement, which was provisionally applied by a number of countries including Belgium, EU, Finland, France, Germany, Japan, Luxembourg, Netherlands, Spain and the UK.

* 1994 Energy Charter Treaty, which Australia, Iceland and Norway are currently applying provisionally. (Of course, Russia was applying it provisionally until 2009 – which just serves to reinforce the point that provisional application is needed as a mechanism to avoid a gap but ratification is ultimately needed).

* The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea

* The International Coffee Agreement (particularly important for those late night sessions!)

* A number of bilateral agreements, such as the 1996 Agreement between the European Community and New Zealand on sanitary measures applicable to trade in live animals and animal products (which was applied provisionally until its entry into force in 2003) and the 2006 Agreement between the European Community and New Zealand on certain aspects of air services .

* And who can forget the mother of all provisional applications – the 1947 General Agreement on Tariffs and Trade (GATT) was applied provisionally through the Protocol of Provisional Application from 1948 until the WTO agreement entered into force in 1995!

ECO just can’t understand what makes the climate change regime different. Why couldn’t we apply the amendment for the second commitment period provisionally?

Durban needs to deliver a mandate for a legally binding instrument under the LCA.  For a balanced outcome we must pair legal with legal – thus provisional application of a legally binding amendment under the Kyoto Protocol is crucial.

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