Provisional Application – An Overview

Briefing paper

Date produced: 04/10/2010

The continued failure of the parties to agree a second commitment period for the Kyoto Protocol is a cause for concern. Further delay in any agreement for a second commitment period could mean that there will be a gap between commitment periods where the relevant parties are not bound by any emission reduction commitments.

A key problem is that of legislative procedure and timing: a formal amendment to the Protocol, whilst the most desirable course of action, would in all probability, not come into effect until after the expiry of the first commitment period.

A number of parties have begun to investigate options for addressing a potential gap between commitment periods and the UNFCCC Secretariat has recently produced a note on this issue.

A variety of methods has been suggested for avoiding the legal and political implications of such a gap, one of which is the legal technique of ‘provisionally applying’ amendments to the Kyoto Protocol pending their formal entry into force. These amendments would set out legally-binding mitigation targets for Annex I Parties.

This briefing paper looks at the concept of provisional application under international law and focusing on its legal basis and how it could be brought about and setting out examples where treaties have been provisionally applied in the past. Domestic concerns arising from provisional application are not considered as they will be the subject of a future LRI Briefing Paper.