The Provisional Application of International Agreements

The last few decades have seen a tremendous increase in the number of international agreements concluded by states and international organizations. The pace of concluding international agreements is accelerating and will most likely continue to accelerate at an increasing rate. The growing reliance on international agreements by the members of the world community is of course a response to rapidly expanding international interactions and interdependencies. Until the latter part of the nineteenth century, international agreements dealt primarily with political matters: peace treaties, treaties of alliance and friendship, neutrality treaties, and treaties settling territorial claims. Today, international agreements deal not only with political matters, but with legal, social, cultural, economic, technical, and administrative matters as well. Perhaps most significant is the growing use of multilateral agreements, whereby nations codify or create norms of international law or establish international organizations. Indeed, the International Law Commission has recently observed that "the conclusion of multilateral agreements has become the main device in the legal regulation of the relations between States." Given the prominence of international agreements of all sorts for the orderly and effective operation of the international legal system, it is central to the mission of international law to provide the legal framework for the expeditious conclusion and entry into force of legally meaningful international agreements. Unfortunately, problems are often encountered with the entry into force of international agreements that are negotiated and concluded in good faith. Some concluded agreements never do enter into force. Others enter into force only after long delay. Some multilateral agreements that do enter into force never obtain the number of adherences hoped for so that they do not attain the intended universal or near-universal application; or adherences to such agreements may be delayed for considerable periods of time. Although some international agreements, because of domestic political opposition, do not enter into force or obtain many adherences, others simply run afoul of the often cumbersome and time-consuming national processes required for ratification. The problem of final acceptance of multilateral agreements has been recognized by the League of Nations and the United Nations and has been the subject of discussion and study. Recently, the United Nations General Assembly requested the Secretary-General to prepare a report "on the techniques and procedures used in the elaboration of multilateral treaties." The report expresses "an increasing concern with the non-ratification or the slow ratification of multilateral treaties, resulting in delays in their entry into force, in restricting the number of participating States for an excessive number of years, and even in the failure of certain treaties to enter into force at all." The period between the conclusion of international negotiations and the definitive entry into force of treaty obligations is a particularly sensitive one. The momentum of negotiations and the cooperative relationships established during negotiations must continue. To this end, it is extremely helpful if the successful outcome of the negotiating process can be given immediate legal protection. The law of provisional application is an important mechanism developed by states to afford such protection. This Article describes and discusses the mechanism of provisional application.