Provisional Application of the Energy Charter Treaty: A Short Analysis of Article 45

Abstract

This paper discusses the provisional application of the ECT under Article 45, with particular attention to three major cases currently pending against the Russian Federation. It makes four main points. First, paragraphs (1) and (2) of Article 45 function independently from each other. This means that Article 45 (1) can be invoked even if no declaration has been made under Article 45 (2) - as in the case of the Russian Federation. Second, the domestic law clause in Article 45 (1) can be invoked only if the relevant domestic legal instrument existed at the time of signature and is still in force. Having signed the ECT in 1994, the Russian Federation is prevented from invoking the 1995 Federal Law on international treaties for the purpose of Article 45 (1). Third, even assuming that the 1995 Federal Law could be invoked, it is not inconsistent with the provisional application of the ECT. Finally, Article 45 is a complex but sufficiently clear provision aimed at rapidly making the ECT applicable between signatories while accommodating the needs of recalcitrant members with a view to achieving the broadest possible participation