INTRODUCTION

Article 23 of the Arms Trade Treaty (ATT) allows a State to declare that it will apply Article 6 (Prohibitions) and Article 7 (Export and Export Assessment) of the Treaty pending the ATT’s entry into force for that State. Articles 6 and 7 set out the circumstances when a transfer is prohibited, and the procedures for assessing a range of risks associated with a potential export and determining whether to proceed with the export authorization.

The ATT itself ‘shall enter into force ninety days following the date of the deposit of the fiftieth instrument of ratification, acceptance or approval with the Depositary’ (Art. 22(1)). The fiftieth ratification was deposited on 25 September 2014 and the ATT entered into force on 24 December 2014. For a State that deposits its instrument of ratification, acceptance, approval or accession after this date, the ATT enters into force for that State ninety days after it has deposited its instrument of ratification, acceptance, approval or accession (Art. 22(2)).

PROVISIONAL APPLICATION

The provisional application of treaties – be it in their entirety or with respect to specific provisions – is described in Article 25(1) of the 1969 Vienna Convention on the Law of Treaties (VCLT):‘[a] treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed.‘

The rationale for provisional application clauses in treaties can be found in the International Law Commission’s (ILC) commentary on the DraftArticles on the Law of Treaties. The ILC stated: ‘Owing to the urgency of the matters dealt with in the treaty or for other reasons the States concerned may specify in a treaty, which it is necessary for them to bring before their constitutional authorities for ratification or approval, that it shall come into force provisionally’ (UNGA, 1971, p. 30).