Study On The Provisional Application Mechanism Of The Energy Charter Treaty

The end of the Cold War provided a good opportunity for cooperation between the independent countries with abundant energy resources after the collapse of the Soviet Union and the European countries with increasing energy demands.In this context,ECT came into being.As the first international treaty in the field of energy,in order to prompt the signatories to apply ECT as soon as possible and to meet the needs of other members who refuse to apply ECT provisionally,with a view to achieving the widest possible range of country contracting,ECT added the provisional application mechanism.ECT Article 45 is currently the more comprehensive provisional application clause,but the three disputes arose in the application process reflect the problems in the application of the clause.Through case analysis,literature research and other methods,this paper summarizes the application problems of ECT provisional application clauses,which may bring corresponding enlightenment for future treaties that may add provisional application mechanism,and also provide some references for countries,to face future treaties containing provisional application mechanism.This paper is divided into three parts,the main content is as follows:The first part,ECT and the summary of the provisional application mechanism of the treaty,is the basic theory part.This section introduces the basic information of ECT;The basic points of the provisional application mechanism of treaties,including the relationship between provisional application and provisional entry into force,the provisions of the 1969 VCLT on the mechanism,the reasons for the introduction of the mechanism,and the research process of the ILC on the mechanism;Content analysis of the provisional application clause of ECT,i.e.,Article 45.The second part through the analysis of three cases,summarizes the application problem of the provisional application clause of ECT.Ioannis Kardassopoulos v.Georgia reflects that the provisions on the relationship between provisional application and entry into force are not clear;Yukos case makes the conflict between provisional application and domestic law become the focus issue again;Petrobart Limited v.The Kyrgyz Republic reflects the unclear of the termination of provisional application.The third part draws the conclusion of this paper based on the analysis of the previous part,that is,the enlightenment brought by these applicable problems.Fortreaties that may introduce provisional application mechanism in the future,the legal effect of provisional application should be clarified and the way to terminate provisional application should be regulated.If the application can be approved with restrictions due to domestic laws,the requirement of prior declaration should be added if the Limitation Clause are intentionally added.For our country,we should attach importance to the negotiation process in the drafting stage of the treaty,actively participate in it,and put forward our own requirements for the provisional application mechanism.Special declaration shall be made on the provisional application of different jurisdictions.Cautious signing of treaties containing provisional application mechanism.