1969년 조약법에 관한 비엔나협약 제25조(조약의 잠정적용)에 관한 소고(小考)

Abstract

This paper examines the history of elaboration and some legal aspects of Article 25 of the 1969 VCLT which provides a possibility of the provisional application of treaties concluded between States. The States have used the mechanism of provisional application when they concluded bilateral agreements and multilateral conventions upon several reasons, for example necessity or urgency, flexibility and precaution, etc. The Korean government also used it sometimes. From the beginning of 1950s, the UN International Law Commission (ILC) embarked the works of codification concerning the law of treaties on the basis of the relevant States' practice. In 1969, the VCLT was adopted at the diplomatic conference and the provision concerning the provisional application was inserted into Article 25. We can say Article 25 was formulated in a simple and basic style, i.e. it enumerates only possibilities of provisional application and its termination. Therefore, this provision alone cannot provide a clear concept of provisional application, specific legal requirements for implementing a provisional application, etc. Especially we don’t have any answers about how we can assure the legal stability and protect one contracting State when another contracting State terminates unilaterally the provisional application of the treaty. In order to dispel uncertainties concerning 'the provisional application of treaties', the ILC initiated the review process on it from 2012. As the work process in the ILC is still in its early stages, we have to wait and see how the meaning of Article 25 of the 1969 VCLT will be clarified to some extent: the ILC should examine it not only on the relevant provisions of the 1969 VCLT, but also on internal laws and regulations of various countries. The Provisional application of the treaty is considered as a reflection of customary international law because it is well established by the practice of States. However, it might be exploited as a means to circumvent the domestic procedure of ratification foreseen by the domestic law, especially by the Constitution.