Provisional application of treaties: a challenge to constitutional principles or an inherent attribute of international relations?

Given the absence of specific provisions in the Vienna Convention on the Law of Treaties of 1969 aimed at the regulation of the international and national law correlation with respect to the provisional application of international treaties, the article examines the degree and nature of relevance of constitutional provisions when a state expresses consent to the provisional application of an international treaty. This regime has undoubted advantages, allowing the executive to promptly resolve various difficulties arising in international relations without resorting to lengthy procedures of parliamentary approval. At the same time, considering that the obligations of the state arising by virtue of provisional application are governed by the pacta sunt servanda principle, fair concerns arise in relation to the limits of the executive’s powers to bind the state with international legal obligations in light of the constitutional principle of separation of powers, as well as special nature of legislative bodies exercising the functions of people’s representation. Options for resolving these difficulties are reflected in the national legislation of states, which provides for special conditions for consent to provisional application. At the same time, there is uncertainty with regard to the question of the conditions for recognizing the state’s consent to the provisional application invalid in the event when the executive violates relevant requirements of domestic law when expressing such consent. It seems that using the same rules as those provided for in article 46 of the Vienna Convention for invalidating a state’s consent to be bound by an international treaty would not fully take into account the specifics of the regime of provisional application of treaties. With these concerns in mind and taking into account the comparative legal analysis carried out, there are solutions proposed aimed at increasing parliamentary control over the executive in the Russian Federation without leveling the advantages of the regime of provisional application. Such solutions, inter alia, imply both the expansion of parliamentary functions and the establishment of additional legal procedures to ensure the implementation of the prescriptions outlined in the decisions of the Constitutional Court of the Russian Federation.