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Published online by Cambridge University Press: 12 November 2024
Under the law of treaties, two mechanisms currently seek to bridge the gap between the conclusion and entry into force of treaties. These are found in Article 18 (the obligation not to defeat the object and purpose of a pending treaty) and Article 25 (provisional application of treaties) of the Vienna Convention on the Law of Treaties. This article considers the nexus and relationship between these provisions and clarifies two aspects of their interaction. First, the article assesses how Articles 18 and 25 interact in their practical application and whether Article 25 can inform the content and interpretation of Article 18. Second, the article explores how the termination of a provisionally applied treaty under Article 25(2) affects the applicability of Article 18(a).
1 SS Lotus (France v Turkey) PCIJ Rep Series A No 10, 8.
2 Vierdag, EW, ‘The Time of the “Conclusion” of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’ (1988) 59(1) BYIL 75Google Scholar, 77–8.
3 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).
4 Comprehensive Nuclear-Test-Ban Treaty (adopted 10 September 1996; not yet in force) (CTBT).
5 It is doubtful whether the number of contracting States required for the CTBT's entry into force will ever be acquired.
6 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).
7 Except for persistent objectors. On the customary status of art 18, see H Lauterpacht, Special Rapporteur, ‘Report of the Law of Treaties’, UNYBILC, vol II (1953) UN Doc AICN.4/Ser.A/1953/Add.1, 110; GG Fitzmaurice, Special Rapporteur, ‘Report on the Law of Treaties’, UNYBILC, vol II (1956) UN Doc AICN.4/SER.A/1956/Add.1, 122; JS Charme, ‘The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma’ (1991) 25 GeoWashJIntlL&Econ 71, 77; Dörr, O, ‘Article 18’ in O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2018) 221Google Scholar; Bradley, CA, ‘Treaty Signature’ in DB Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 213Google Scholar; Palchetti, P, ‘Article 18 of the 1969 Vienna Convention’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011) 25Google Scholar; L Boisson de Chazournes, Rosa, A-M La and Mbengue, MM, ‘Article 18’ in O Corten and P Klein (eds), Les Conventions de Vienne sur le droit des traités (Bruylant 2006) vol I, 594Google Scholar; Kritsiotis, D, ‘The Object and Purpose of a Treaty's Object and Purpose’ in M Bowman and D Kritsiotis (eds), Conceptual and Contextual Perspectives on the Modern Law of Treaties (CUP 2018) 269–71Google Scholar.
8 A Quast Mertsch, ‘Provisional Application of Treaties and the Internal Logic of the 1969 Vienna Convention’ in Bowman and Kritsiotis ibid 306.
9 See, eg, JM Gómez-Robledo, Special Rapporteur, ‘Sixth Report on the Provisional Application of Treaties’ (9 June 2014) UN Doc A/CN.4/675, para 14; and United Nations (UN), ‘Official Records of the General Assembly, Sixty-Seventh Session, Supplement No 10 (A/67/10)’ (2012) UN Doc A/67/10, para 147; Brölmann, C and den Dekker, G, ‘Treaties, Provisional Application’ in R Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (OUP 2022) para 24Google Scholar. Other views in scholarship sometimes allude to the relationship between the two provisions; see, for instance, D Azzaria, ‘Provisional Application of Treaties’ in Hollis (n 7) 242.
10 As noted by Michie, A, ‘The Provisional Application of Arms Control Treaties’ (2005) 10(3) JC&SL 345, 352Google Scholar: ‘[i]n arms control treaties, the interim period between signature and entry into force is one of particular sensitivity. The signatory states may have made important concessions during arduous negotiations to arrive at an acceptable compromise. They will usually wish to ensure that nothing undermines the treaty before its entry into force and will keenly observe each other's conduct, which may have an important influence over whether or not they decide to ratify the treaty’.
11 The article does not examine all aspects of provisional application, such as the legal nature of provisionally applied treaties, the difference between provisional entry into force and provisional application of treaties, the forms of agreement on provisional application, and reservations to provisionally applied treaties as these have been thoroughly analysed elsewhere; see, for instance, Mertsch, A Quast, Provisionally Applied Treaties: Their Binding Force and Legal Nature (Brill 2012)CrossRefGoogle Scholar.
12 Energy Charter Treaty (adopted 17 December 1994, entered into force 16 April 1998) 2080 UNTS 95.
13 For further analysis of the provision, see Gragl, P and Fitzmaurice, M, ‘The Legal Character of Article 18 of the Vienna Convention on the Law of Treaties’ (2019) 68 ICLQ 699CrossRefGoogle Scholar.
14 Turner, RF, ‘Legal Implications of Deferring Ratification of SALT’ (1981) 21 VaJIntlL 747, 777Google Scholar. See also SB Crandall, Treaties: Their Making and Enforcement (2nd edn, John Byrne & Company 1916) 343; JL Brierly, Special Rapporteur, ‘Commentary to Draft Article 3, Second Report: Revised Articles of the Draft Convention’, UNYBILC, vol II (1951) UN Doc A/CN.4/SER.A/1951/Add.1; M Rogoff, ‘The International Legal Obligations of Signatories to an Unratified Treaty’ (1980) 32 MeLRev 263, 267–8, 284.
15 With the exception of the treaty's final clauses and treaties which are applied on a provisional basis; see T Hassan, ‘Good Faith in Treaty Formation’ (1981) 21(3) VaJIntlL 443; Gragl and Fitzmaurice (n 13) 702.
16 A McNair, Law of Treaties (OUP 1961) 199. See further, R Kolb, The Law of Treaties: An Introduction (Edward Elgar Publishing 2016) 115; W Morvay, ‘The Obligation of a State not to Frustrate the Object of a Treaty Prior to its Entry into Force: Commentaries on Art. 15 of the ILC's 1966 Draft Articles on the Law of Treaties’ (1967) 27 ZaoRV 451.
17 Palchetti (n 7) 29.
18 Rogoff (n 14) 267–8; ME Villiger, 1969 Commentary on the Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 248; Bradley (n 7) 208.
19 For instance, as would be the case if a treaty or part of a treaty is applied provisionally under art 25 of the VCLT. See, in this regard, A Michie, ‘The Provisional Application of Treaties in South African Law and Practice’ (2005) 30(1) SAfrYIL 1, 6; ILC, ‘Second Report on the Provisional Application of Treaties by JM Gómez-Robledo, Special Rapporteur’ (9 June 2014) UN Doc A/CN.4/675, para 65.
20 J Klabbers, ‘How to Defeat the Object and Purpose of a Treaty: Toward Manifest Intent’ (2001) 34 VandJTransnatlL 283. For an opposite view on art 18, see Dörr (n 7) 256. See also Sinclair, I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press 1984) 43Google Scholar; Rogoff (n 14) 271; PV McDade, ‘The Interim Obligation Between Signature and Ratification of a Treaty’ (1985) 32 NILR 5, 11.
21 See further, Rydberg, A, The Duty to Safeguard the Object and Purpose of Pending Treaties: A Closer Examination of Article 18 VCLT (Brill 2023) Ch 4Google Scholar.
22 Lauterpacht (n 7) 110.
23 See Harvard Draft Convention on the Law of Treaties: ‘Research in International Law Under the Auspices of the Faculty of the Harvard Law School, Law of Treaties’ (1935) 29 AJILSupp 653, 781–2.
24 Perhaps the most on-point case being Opel Austria as decided by the Court of Justice of the European Union; see Case T-115/94 Opel Austria GmbH v Council [1997] ECR 11–39.
25 H Krieger, ‘Article 25’ in Dörr and Schmalenbach (n 7) 442–3.
26 Urgency has arisen, for example, in treaties relating to the cessation of hostilities and the event of natural disasters. Examples of treaties including express provisions on their provisional application are: the Convention on Early Notification of a Nuclear Accident (adopted 26 September 1986, entered into force 27 October 1986) 1439 UNTS 275; and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (adopted 26 September 1986, entered into force 26 February 1987) Director General of the International Atomic Energy Agency.
27 See JM Gómez-Robledo, Special Rapporteur, ‘First Report on the Provisional Application of Treaties’ (3 June 2013) UN Doc A/CN.4/664, para 25, para 29.
28 As examples of this, Krieger mentions the 1990 Treaty on Conventional Armed Forces in Europe, the 1992 Treaty on Conventional Armed Forces in Europe and the 1993 Treaty between the United States of America and the Russian Federation on Further Reduction and Limitation of Strategic Offensive Arms (START II), Krieger (n 25) 409.
29 Art 7 of the Agreement relating to the implementation of Part XI of UNCLOS (n 3) is an example of this. The provisional application provided for in this clause was included out of a desire to ensure, in light of the imminent entry into force of UNCLOS (the necessary instruments of ratification having already been received), that the Agreement's interpretation of Part XI would be effective prior to its entry into force; see Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 16 November 1994) 1836 UNTS 3; R Lefeber, ‘Treaties, Provisional Application’ in R Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (OUP 2011) 5, para 2.
30 Krieger (n 25) 441. See also Quast Mertsch (n 8) 305–7.
31 Krieger ibid; Michie, A, ‘Provisional Application of Non-proliferation Treaties’ in DH Joyner and M Roscini (eds), Non-Proliferation Law as a Special Regime: A Contribution to Fragmentation Theory in International Law (CUP 2012) 56Google Scholar; Lefeber, R, ‘The Provisional Application of Treaties’ in J Klabbers and R Lefeber (eds), Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierday (Martinus Nijhoff 1998) 81Google Scholar.
32 First Report on the Provisional Application of Treaties (n 27) para 25; Second Report on the Provisional Application of Treaties (n 19) para 15.
33 Second Report on the Provisional Application of Treaties ibid, para 15.
34 See, eg, the Treaty on Conventional Armed Forces in Europe (n 28).
35 eg the Protocol of Provisional Application of the General Agreement on Tariffs and Trade (signed 30 October 1947) 55 UNTS 308; and Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (n 29).
36 Michie (n 31) 58.
37 Krieger (n 25) 451.
38 ibid 443.
39 ibid.
40 See Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No AA 227, Interim Award on Jurisdiction and Admissibility (30 November 2009) para 388. Guideline 6 of the ILC Guidelines on the Provisional Application of Treaties stipulates that ‘[t]he provisional application of a treaty or a part of a treaty produces a legally binding obligation to apply the treaty or a part thereof between the States or international organizations concerned, except to the extent that the treaty otherwise provides or it is otherwise agreed. Such treaty or part of a treaty that is being applied provisionally must be performed in good faith.’ See Draft Guidelines and Draft Annex constituting the Guide to Provisional Application of Treaties, with commentaries thereto, adopted by the International Law Commission at its Seventy-Second Session, in 2021, and submitted to the General Assembly as a part of the Commission's report covering the work of that session (26 April–4 June and 5 July–6 August 2021) UN Doc A/76/10, 62. The report, which also contains commentaries to the draft guidelines, appears in the Yearbook of the International Law Commission (2021) vol II, Part Two.
41 T Ishikawa, ‘Provisional Application of Treaties at the Crossroads between International and Domestic Law’ (2016) 31(2) ICSID Rev/FILJ 270, 274.
42 Quast Mertsch (n 11); Krieger (n 25) 443–5. ILC Guideline 8 provides that ‘[t]he breach of an obligation arising under a treaty or a part of a treaty that is applied provisionally entails international responsibility in accordance with the applicable rules of international law’. See ILC Guidelines (n 40) 63.
43 Brierly (n 14).
44 Lauterpacht (n 7) 108; Fitzmaurice (n 7) 104, 113; H Waldock, ‘First Report on the Law of Treaties’, UNYBILC, vol II (1962) UN Doc A/CN.4/SER.A/1962/Add.1, 27, 46.
45 For instance, through the use of the word ‘would’.
46 Rydberg (n 21).
47 Michie (n 31) 65.
48 It is usually the case for a majority of non-proliferation treaties that only part of the relevant treaty is applied provisionally; see ibid 84–6.
49 Copithorne, MD, ‘Canadian Practice in International Law’ (1978) 16 ACDI 359, 366–7Google Scholar. The Legal Affairs Bureau is part of the Canadian Department of Justice, which has the mandate to support the dual roles of the Minister of Justice and the Attorney General of Canada. The Treaty Law Division of the Department of Foreign Affairs and International Trade is part of the Legal Affairs Bureau.
50 ibid. For the original analysis, see Quast Mertsch (n 8) 316.
51 Advanced by Quast Mertsch ibid 316.
52 Agreement between the EU and the US on the Processing and Transfer of Financial Messaging Data from the EU to the US for Purposes of the Terrorist Finance Tracking Program [2010] OJ L8/11.
53 Letter from the President of the European Parliament to the President-in-Office of the Council of the European Union, 21 January 2010.
54 Letter from the President-in-Office of the Council of the European Union to the President of the European Parliament PE 438.722/CPG/REP.
55 Guidance can also be inferred from the International Court of Justice (ICJ) in the Military and Paramilitary Activities in and against Nicaragua case, where the Court found that the US had an obligation both to perform the specific stipulations of the treaty and simultaneously refrain from conduct which would defeat the object and purpose of the same treaty (which was in force); see Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14, 138.
56 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997) 1975 UNTS 45 (CWC).
57 Resolution Establishing the Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons, Paris, 13 January 1993; see Michie (n 10) 365.
58 ibid 366.
59 ibid. See also J Klabbers, ‘Strange Bedfellows: The “Interim Obligation” and the 1993 Chemical Weapons Convention’ in EPJ Myjer (ed), Issues of Arms Control Law and the Chemical Weapons Convention: Obligations Inter Se and Supervisory Mechanisms (Kluwer 2001) 12.
60 Michie (n 10) 366.
61 Klabbers (n 59) 14.
62 VCLT (n 6) art 26: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’
63 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 91.
64 U.S. Department of State, ‘U.S. Signs 100th Article 98 Agreement’ (Press Statement, 3 May 2005) <https://2001-2009.state.gov/r/pa/prs/ps/2005/45573.htm>.
65 See also In the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States under Article 98(2) of the Statute, joint legal opinion by J Crawford, P Sands and R Wilde, 16 June 2003, paras 53–55.
66 See, eg, Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226; Dispute Concerning Article 9 of the OSPAR Convention (Ireland v United Kingdom of Great Britain and Northern Ireland), PCA Case No 200-03, Final Award (2 July 2003) paras 125–129; Military and Paramilitary Activities in and against Nicaragua (n 55) para 275; Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment) [1994] ICJ Rep 6, para 55; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 179, para 109; Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15.
67 Guideline 3.1.5.1, Guide to Practice on Reservations, adopted by the ILC at its Sixty-Third Session, in 2011, and submitted to the General Assembly as a part of the Commission's report covering the work of that session (26 April–3 June and 4 July–12 August 2011) UN Doc A/66/10, para 75. The report appears in Yearbook of the International Law Commission (2011) UN Doc A/CN.4/SER.A/2011/Add.1, vol II, Part Two.
68 Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) 3013 UNTS 269.
69 See JM Gómez-Robledo, Special Rapporteur, ‘Fourth Report on the Provisional Application of Treaties’ (23 June 2016) UN Doc A/CN.4/699, para 84.
70 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999) 2056 UNTS 211.
71 ibid, art 18.
72 Michie (n 10) 355–62 (emphasis added).
73 See, eg, VCLT (n 6) art 60.
74 Krieger (n 25) 443.
75 The provisional application of a treaty would also terminate upon the treaty's entry into force with respect to a State previously having applied it provisionally. The treaty itself can also specify when and how provisional application would terminate, and the States in question can also agree on this between themselves, for instance through mutual agreement. Given the similar formulations in ‘making the intention clear not to become a party’ under arts 18 and 25 of the VCLT, this article only seeks to examine the broader consequences (sometimes unintended) of terminating provisional application by making the intention clear not to become a party to the treaty as any other way of terminating provisional application would have no effect on art 18 of the VCLT.
76 VCLT (n 6) art 25(2).
77 ibid, art 18 (a).
78 United Nations Conference on the Law of Treaties, First Session 26 March–24 May 1968, Nineteenth Meeting of the Committee of the Whole (extract from the Official Records of the United Nations Conference on the Law of Treaties, First Session, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole) UN Doc A/CONF.39/C.1/SR.19, Statement by the French Delegation, 100, para 45.
79 Dörr (n 7) 251.
80 Bradley, CA, ‘Unratified Treaties, Domestic Politics, and the U.S. Constitution’ (2007) 48 HarvIntlLJ 307, 309Google Scholar. These include: the International Covenant on Economic, Social, and Cultural Rights (signed in 1977); the American Convention on Human Rights (signed in 1977); the Convention on the Elimination of All Forms of Discrimination Against Women (signed in 1980); and the Convention on the Rights of the Child (signed in 1995). They also include important environmental treaties such as the Kyoto Protocol to the United Nations Framework Convention on Climate Change (signed in 1998) and the Rio Convention on Biological Diversity (signed in 1993).
81 Bradley ibid 311.
82 See Letter from John R. Bolton, Under Secretary for Arms Control and International Security, to UN Secretary General Kofi Annan (U.S. Department of State, 6 May 2002) <https://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm>.
83 ibid.
84 M Grossman, Under Secretary for Political Affairs, ‘Remarks to the Center for Strategic and International Studies’ (U.S. Department of State, 6 May 2002) <https://2001-2009.state.gov/p/us/rm/9949.htm>.
85 ‘President Trump “Unsigns” Arms Trade Treaty After Requesting Its Return from the Senate’ (2019) 113 AJIL 813, 816.
86 Bradley (n 80) 312.
87 ibid.
88 Letter from Paula Dobriansky, Under Secretary for Global Affairs, U.S. Department of State, to Christopher C. Horner, Counsel, Cooler Heads Coalition (14 May 2002).
89 ibid.
90 By 51 votes to 48.
91 See M Asada, ‘Article 18 (VCLT) Obligations and the CTBT’ in T Dunworth and A Hood (eds), Disarmament Law: Reviving the Field (Routledge 2020).
92 See Asada ibid; ‘The Imperial Presidency’ Washington Times (Washington, DC, 5 November 1999).
93 See Michie (n 10) 369–70.
94 Annex 2 to the CTBT (n 4) lists 44 States that must ratify the Treaty in order for it to enter into force, and the US is one of those States.
95 Treaties and International Agreements Registered or Filed and Recorded with the Secretariat of the United Nations, vol 2533, No 45203 (2008) 266 <https://treaties.un.org/doc/Publication/UNTS/Volume%202533/v2533.pdf>.
96 Under VCLT (n 6) arts 78 and 79, the duties of the depositary include communicating such relevant information to States parties and States entitled to become parties.
97 See Case Concerning Right of Passage over Indian Territory (Preliminary Objections) (Judgment) [1957] ICJ Rep 125, 146; Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Judgment) [1998] ICJ Rep 275, 293.
98 For the original analysis, see Michie (n 10).
99 Russian foreign ministry statement. On Legal Status of the Treaty between Russia and the USA on Further Reduction and Limitation of Strategic Offensive Arms (14 June 2002) 1221.
100 Dörr (n 7) 251; North Sea Continental Shelf Cases (Germany v Denmark/Germany v the Netherlands) (Judgment) [1969] ICJ Rep 3, 219, 233–5, Dissenting Opinion of Judge Lachs.
101 Dörr ibid 251; North Sea Continental Shelf Cases ibid.
102 Only under certain very narrowly defined circumstances would implied conduct be sufficient to express such intention and it has to be stated in an open and unambiguous manner. One example might include, although it remains problematic as noted above, the practice of the US in relation to the Kyoto Protocol. However, this is only because of the open and public nature of certain statements and because the Bush administration repeatedly expressed opposition to the treaty with the view of making its position with respect to the Kyoto Protocol clear and unambiguous on the international stage.
103 ILC Guideline 9(2) reads as follows: ‘Unless the treaty otherwise provides or it is otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State or an international organization shall be terminated if that State or international organization notifies the other States or international organizations concerned of its intention not to become a party to the treaty.’ See ILC Guidelines (n 40) 63.
104 ILC Guidelines ibid 94, para 6 of the commentary to Guideline 9. See also Azzaria (n 9) 253.
105 According to the Chairman of the Drafting Committee at the First Session of the Vienna Conference of the Law of Treaties, the text of today's art 25(2) of the VCLT was, inter alia, based on an amendment by Belgium; see Seventy-Second Meeting of the Committee of the Whole (15 May 1968) UN Doc A/CONF.39/C.1/SR.72, 427, para 27. The Belgian delegate emphasised the fact that this formulation was based on the terms employed in today's art 18 of the VCLT; see United Nations Conference on the Law of Treaties, First Session 26 March–24 May 1968, Twenty-Sixth Meeting of the Committee of the Whole (extract from the Official Records of the United Nations Conference on the Law of Treaties, First Session, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole) UN Doc A/CONF.39/C.1/SR.26, Statement by the Belgian Delegation, 142, para 42.
106 Second Report on the Provisional Application of Treaties (n 19) para 78.
107 Australia signed on 17 December 1994 and deposited its declaration on 15 October 2021. Russia signed on 17 December 1994 and deposited its declaration on 20 August 2009.
108 See communication by The Director of the Department of Legal Affairs, Government of Portugal (ECT Depositary) to the Secretary-General of the Energy Charter Conference Secretariat (6 December 2021) Ref 144696/2021.
109 See further, the ‘Energy Charter Treaty’ (International Energy Charter, 2019) <https://www.energycharter.org/process/energy-charter-treaty-1994/energy-charter-treaty/>. This can be compared to the situations of Sudan and the US mentioned above, both having made their intentions clear not to become a party to the Rome Statute under art 18(a) of the VCLT. Although having made their intentions clear not to become ICC members, their respective signatures are still listed, albeit with a note on their notifications; see UN Treaty Collection, ‘Rome Statute of the International Criminal Court’ <https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280025774&clang=_en>.
110 See also, I Mironova, ‘Russia and the Energy Charter Treaty’ (International Energy Charter, 7 August 2014) <https://www.energycharter.org/what-we-do/knowledge-centre/occasional-papers/russia-and-the-energy-charter-treaty/>.
111 See ‘Russian Federation’ (International Energy Charter, 2019) <https://www.energycharter.org/who-we-are/members-observers/countries/russian-federation/>.
112 In accordance with its duties under arts 78 and 79 of the VCLT.
113 The exception being the investments made within the sunset clause.
114 Lastly, it should be mentioned that even if a State terminates the provisional application of a treaty, art 18(b) continues to apply if the State has expressed its consent to be bound by the treaty. Art 18(b) cannot be terminated by making an intention clear not to become a party to the treaty, but only under circumstances where the entry into force of the treaty is unduly delayed. Thus, if two or more States have ratified the CTBT and agreed on the provisional application of the treaty or parts thereof, they would still be obliged not to defeat the object and purpose of the CTBT pending its entry into force in the event a State notifies other relevant States of its intention not to become a party to the CTBT. A compelling argument can be made that the entry into force of the CTBT is not unduly delayed; see Rydberg (n 21) Ch 5.