Provisional application of an international treaty inconsistent with national law: is the impossible possible?

Provisional application of international treaties never attracted much attention of the Russian scholars and practitioners. However, recent decision of the Permanent Court of Arbitration in Yukos case under the Energy Charter Treaty raises serious concerns with regard to interpretation and application of provisionally applied treaties. Relation of national imperative norms and norms of provisionally applied treaty without ratification by national parliament represents a problem of particular importance. The author analyzes the award of the Permanent Court of Arbitration in Yukos case, different views on the interpretation of Article 45(1) of the Energy Charter Treaty, recent decisions of the Russian Constitutional Court on provisional application of treaties and makes recommendations how to improve situation with provisional application of treaties in Russia.

About the author: Vladislav V. Starzhenetskiy – Associate Professor, Law Faculty, National Research University – Higher School of Economics, Moscow, Russia.