Research On The Provisional Application Of The Treaty

The provisional application of the treaty is to deal with the situation in which the parties intend to apply the entire treaty or part of the clause in advance for a variety of reasons before the treaty enters into force.The provision of provisional application in Article 25 of the 1969 Vienna Convention on the Law of Treaties is a legal response to the emerged international practice of agreeing to the provisional application of treaties between countries.But with the increasing complexity of international relations,the new legal issues in the provisional application of treaties in international practice cannot be solved by relying solely on this clause.Therefore,it is necessary to conduct a more comprehensive study on the provisional application system of the treaty and to provide a legal basis and guiding methods for the practice of provisional application of treaties.This paper demonstrates and discusses the provisional application system through theory and practical analysis methods.The article is divided into five parts,which are divided from the development process of the treaty and its connotation,the necessity of existence,the specific rules,the legal effect and the interaction with the rules of domestic law to demonstrate the provisional application of treaties.Finally,the enlightenment to China was put forward.In the introduction part of the article,it mainly discusses the significance of the topic and the current research situation.On the one,the study of this topic is theoretically hand to improve the legal basis for the provisional application of the treaty,on the other hand to supplement the study of the treaty law mechanism.In practice,it provides a reference guide for countries or international organizations to resolve various legal issues encountered in signing a treaty for the provisional application of treaties.The first part shows the development and connotation of the system of provisional application of treaties.From the academic theory to the formulation of the provisional applicable legal norms,and from the general legal rules to the specific system of Guide to Provisional Application of Treaties,it clearly shows the historical evolution process that the provisional application of treaties is from nonexistence to pass into existence and from abstract to specific.In combination with the definition and characteristics of the concept of provisional application of the treaty,the author expounds the meaning of provisional application.Finally,the similarities and differences between "provisional application" and "entry into force" and "provisional entry into force" are analyzed,and the characteristics of temporary,transitional and flexible provisional application are obtained.The second part focuses on the need for the existence of a provisional application of treaties.Summarizing and commenting on the favourable and opposing views that endorsed the provisional application of treaties to demonstrate the rationality of the existence of provisional application from the temporary advantages of temporary application.Pointing out the purpose of provisional application,and combining with the international treaty cases collected by the International Law Commission to summarize the four different roles that the treaty is provisional applied to different types of treaties in practice.The third part explores in detail the specific rules that should be included in the system of provisional application of the treaty.The main rules of the system are revealed from the four aspects:the form of agreement,the start time,the time of termination and the restrictions on it.Among them,the applicable subject has gradually expanded,and the form of agreement has become more diversified with the development of international practice.According to the analysis of the examples of treaties in practice,it is concluded the time limit for the provisional application.Finally,discussing two ways of restricting the provisional application of treaties in practice.The fourth part demonstrates the legal effect of the provisional application of the treaty.Except as otherwise stipulated in treaties,a provisionally applicable treaty has the same legal effect as the entry into force of treaties,and will create legal obligations.It should also bear international legal responsibility in violation of the corresponding treaty obligations.A treaty that agrees to provisionally apply only has legal effect on both contracting parties and can be agreed to have retrospective effect.In addition,the treaty reservation system also applies to the provisional application system.When concluding a treaty,a contracting party may formulate a reservation to limit the legal effect of the provisional application of treaties.The fifth part studies the interaction between the provisional application of treaties at the level of international law and the rules of domestic law.Reflecting on the mutual influence of the international law and the domestic law rules of each country.When signing a treaty that agrees to apply provisionally,the parties will consider the provisions of mutual domestic law,and domestic law also has different attitudes towards the system of provisional application of treaties.Some countries are allowed to apply provisionally and subject to domestic laws,while others are not allowed to apply temporarily.Finally,it analyzes the international disputes caused by the lack of clear provisions on the provisional application of domestic law rules,and summarizes the revelations that China can obtain from it.