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Anomalous Nature of Provisional Application and Its Meaning in the International Treaty-Making

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Title: Anomalous Nature of Provisional Application and Its Meaning in the International Treaty-Making
Author(s): Vorobtsova, Anna
Contributor: University of Helsinki, Faculty of Law
Discipline: International law
Language: English
Acceptance year: 2018
Abstract:
Tiedekunta/Osasto-fakultet/Sektion – Faculty of law Laitos – Institution - Department Tekijä – Författare – Author Anna Vorobtsova Työn nimi – Arbetets titel – Title Anomalous nature of provisional application and its meaning in the international treaty-making Oppiaine – Läroamne – Subject Public international law Työn laji - Arbetets art – Level Master’s thesis Aika - Datum – Month and year May 2018 Sivumäärä - Sidoantal – Number of pages 80 Tiivistelmä - Referat – Abstract Rule on provisional application of treaties has always been treated as a certain anomaly from a perspective of both international and constitutional law. The reason for this attitude lies in the fact that it allows applying a treaty prior to its ratification, while it is not yet implemented into the national law of a particular state. Due to its unique properties, the regime of provisional application lacks conceptual clarity, and its place within the other legal principles of international treaty law is not self-evident. At the same time, the usefulness of the mechanism has been proved in practice because of its flexibility and effectiveness in certain situations. With the growing number of provisionally applied treaties and recent judicial practice, International Law Commission has admitted the importance of the doctrinal clarification. For the past 5 years, ILC has been working on the project of Draft Guidelines concerning provisional application within the context of Article 25 of the VCLT. The main goal of the project is to provide states with some framework and guidance on the use of the regime and fill in the gaps in understanding of the mechanism of provisional application. The purpose of the present paper is to analyze the legal concept of provisional application, its meaning and place within the international law system. The research will be conducted with regards to the key aspects, which are divided into chapters. First chapter will highlight the historical view on the concept of provisional application. Specifically, its entire establishment process will be traced: starting from the XVII century when the regime reflected in similar mechanisms that were used in state practice and up until now. Second chapter will examine the case-based view on the concept of provisional application, i.e. recent judicial practice on the matter. Specifically, it will discuss the possible interpretations of particular clauses on provisional application of a certain treaties and the ways in which such interpretations may affect the legal nature of the concept. The last chapter will focus on the precise legal nature of the provisional application as it is now. The meaning and properties of the concept will be extracted and analyzed through its difference from the definitive entry into force, based on historical, conceptual, procedural and political aspects. Avainsanat – Nyckelord – Keywords International law, treaty law, provisional application, entry into force, ratification Säilytyspaikka – Förvaringställe – Where deposited Faculty of law at the University of Helsinki Muita tietoja – Övriga uppgifter – Additional information


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