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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
7. PROVISIONAL APPLICATION
OF INTERNATIONAL TREATY
Attention shall be drawn on the issue of
the provisional application of international
treaty. 1969 Vienna Convention "on the Law
of Treaty" provides the opportunity for the
State on provisional application of a treaty or
a part of a treaty unless the treaty otherwise
provides or the negotiating States have otherwise
agreed. It is important to diverse the
provisional application of the treaty from the
entering of the treaty into force. Once a treaty
entered into force it can not be provisionally
applied. Possibility of the provisional application
of a treaty is based on the circumstance
that in some cases States are willing to apply
a treaty upon its signature notwithstanding the
fact that implementation of relevant domestic
procedures – ratification, approval may be
necessary for a treaty to enter into force.
Therefore provisional application of a treaty
totally depends on the agreement and the will
of the States. 12
In accordance with Article 20 of the law of
Georgia "on International Treaties of Georgia",
if international treaty provides for the provisional
application of the treaty or its several
provisions, or parties have agreed on this,
Georgia applies such treaties upon its entry
into force.
The abovementioned provision of the law
prohibits provisional application of international
treaty by Georgia unless thetreaty is in
force, which means that the law of Georgia
rejects the opportunities envisaged by the provisions
of the Convention. 13
In case provisional application is prescribed
by multilateral international treaty, Georgia
according to the requirements of the law, is
obliged to make a reservation to the international
treaty, which will give the opportunity to
apply a treaty only after Georgia expresses
consent of the State to be bound by international
treaty. As regards to bilateral international
treaty, Georgia shall refrain from inclusion
of the provisions related to its provisional
application.
Worthwhile to mention that negative approach
on provisional application of international
treaty is expressed not only by Georgia,
but by other countries as well. 14 At Vienna
Conference on the International Law of Treaty,
several Countries have stated, that provisional
application of international treaties is
prohibited in there countries. 15
Practice of treaties of Georgia has proved
that in particular cases provisional application
of the international treaty is reasonable. For
instance GUAM Statute, which was stipulating
its provisional application until its entry into
force, has been signed by Georgia without any
reservations. Therefore, based on Vienna
Convention which in accordance with the Constitution
of Georgia as an international treaty
takes precedence over all other normative
acts, and in accordance with the foreign policy
priorities of the state, Georgia started performance
of obligations under the Statute before
its effective date.
Considering the abovementioned practice
and according to the State interests, it would
be desirable if the legislation of Georgia allows
provisional application of an international
treaty. However, in order to avoid the endless
extension of provisional application of a
treaty, it is possible to certain term to be determined
by the legislation, and during that
period Georgia shall decide weather to become
a party to international treaty.
8. INTERNATIONAL TREATY OF MILITARY
CHARACTER
The role of legislative authority in relation
to the conclusion of international treaty generally
applies to the conclusion of treaties of
exclusive importance for the State. It is natural
that each State determines the area of the
issues, recognized as exclusively important
and, therefore provides for obligatory participation
of the Parliament in conclusion of treaties
of such category. 16
In accordance with Article 14 of the law of
Georgia "on International Treaties of Georgia"
and Article 65 of the Constitution of Georgia
apart from the international treaties and agreements
providing for ratification, it shall also be
obligatory to ratify an international treaty and
agreement which is of a military character, but
following to Article 4 of the mentioned law, treaty
referring to the military issues shall be concluded
on behalf of Georgia. Thus the Ministry
of Defense as central organ of executive
authority does not have an opportunity to conclude
interagency treaties on the issues within
its competence. Since the law does not stipulates
the definition of "Treaties of Military
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