Critical Assessment of Provisional Application of Environmental Treaty in the Facilities of CCS Projects

Xingyu Chen

doi:10.54097/5v8bp739

Authors

Xingyu Chen

DOI:

https://doi.org/10.54097/5v8bp739

Keywords:

CCS Project, Provisional Application of Treaties, International Treaty-making

Abstract

Removing legal barriers of carbon capture and storage project requires a provisional application of treaty related. And the Vienna Convention on the Law of Treaties as well as the Guide to Provisional Application of Treaties provide the law basis for such application of treaties. The positive role of such application in promoting the implementation of carbon capture and storage technologies explains its unique functions as a tool under international emergency, especially when it comes to environmental law. Nevertheless, the issue raised from that the provisional application of treaties shall not be underestimated. It can be found that the practice of provisional application may lead to the instability of the effectiveness of the treaty, the impairment of the integrity of the treaty as a whole, as well as the possibly imposing challenge on the interaction between provisionally applied treaty and the domestic law.

References

[1] PCA Case, No. AA 226, Yukos Universal Limited (Isle of Man) v. The Russian Federation, Final Award, 18 July 2014.

[2] René Lefeber, The Provisional Application of Treaties, Essays on the Law of Treaties, in Nijhoff, 1998.

[3] The term of emergency is a widely used one in the field of international law and is addressed in areas such as the law of State responsibility, the law of armed conflict, etc., where it has a broad and varied behavioural appearance.

[4] Article 25 of the Vienna Convention on the Law of Treaties.

[5] International Law Commission, “Guide to Provisional Application of Treaties”, Guideline 1, UN General Assembly Document A/76/10, 2021.

[6] Hobér K, Investment Arbitration and the Energy Charter Treaty Expand, International Dispute Settlement, 2010.

[7] Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No AA 227, Final Award, 18 July 2014.

[8] Li Yangyong, "On the Sources of International Environmental Law", in Journal of Henan College of Politics and Law Management Cadre, No. 2, 2006.

[9] UN General Assembly, 'Report of the International Law Commission on the work of its sixty-third and sixty-fourth sessions', A/CN.4/657 (18 January 2013), p. 13. A/CN.4/657 (18 January 2013).

[10] Ji Xiangren, "On the Provisional Application of International Treaties", in Journal of Guangxi University (Philosophy and Social Science Edition), No. 6, 2017.

[11] IMO, 'Report of the Thirty-first Consultative Meeting and the Fourth Meeting of Contracting Parties' LC 31/15 (30 November 2009).

[12] IMO, 'Report of the Thirty-first Consultative Meeting and the Fourth Meeting of Contracting Parties' LC 31/15 (30 November 2009).

[13] IMO, 'Report of the Forty-first Consultative Meeting and the Fourteenth Meeting of Contracting Parties' LC 41/17 (17 October 2019).

[14] Global CCS Institute, The Global Status of CCS, 2021.

[15] Viktor Weber, Are We Ready for the Ship Transport of CO2 for CCS? Crude Solutions from International and European Law, Review of European, Comparative & amp; International Environmental Law (2021), p. 4. amp; International Environmental Law, 2021.

[16] IMO, 'CO2 Sequestration in Sub-Seabed Geological Formations - Proposed Resolution on the Provisional Application of the 2009 Amendment to Article 6 of the London Protocol' LC 41/6 (2 August 2019). 2009 Amendment to Article 6 of the London Protocol' LC 41/6 (2 August 2019).

[17] Global CCS Institute, The Global Status of CCS, 2021; IPCC Special Report on Carbon Dioxide Capture and Storage, at p.5, para.6; Carbon Capture for marine and offshore industries, available at . and offshore industries, available at https://ww2.eagle.org/content/dam/eagle/articles/abs-carbon-capture-for-offshore-industry-ccj- 2021.pdf.

[18] ILC, Draft Guidelines and Draft Annex Cconstituting the Guide to Provisional Application of Treaties With Commentaries Thereto, A/76/10 (8 October 2021), pp. 153-166, available at: . 2021), pp. 3-4, available at: http://legal.un. org/docs/?path=..... /ilc/texts/ instruments/ english/ commentaries / 1_12_2021.pdf&lang=EF.

[19] Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No AA 227, Final Award, 18 July 2014; Veteran Petroleum Limited (Cyprus) v. The Russian Federation, PCA Case No AA 228, Final Award, 18 July 2014; Zhang Jian, "Study on the Mechanism of Provisional Application of the to the Signatory States", in Gansu Institute of Politics and Law Journal, No. 6, 2016.

[20] ILC, Draft Guidelines and Draft Annex Constituting the Guide to Provisional Application of Treaties, (8 October 2021), p.69, para. (3), available at. http://legal.un.org/docs/?path=. /ilc/ texts/ instruments/ english/draft_ articles/1_12 _2021. Pdf & lang=EF

[21] Yoshifumi Tanaka, The International Law of the Sea, Cambridge University Press , 2019.

[22] Viktor Weber, Are We Ready for the Ship Transport of CO2 for CCS? Crude Solutions from International and European Law, Review of European, Comparative & amp; International Environmental Law. 2021.

[23] D Langlet, Exporting CO2 for Sub-Seabed Storage: the Non-Effective Amendment to the London Dumping Protocol and Its Implications, International Journal of Marine and Coastal Law, 2015.

[24] Malcolm N. Shaw, International Law (9th edition), Cambridge University Press, 2021.

[25] Krieger, Provision Application, in Vienna Convention on the Law of Treaties, A Commentary, Oliver Dorr&Kirsten Schmalenbach eds, Berlin. Springer, 2012.

[26] Anneliese Quast Mertsch, Provisionally Applied Treaties: Their Binding Force and Legal Nature, Martinus Nijhoff Publishers, 2012, p. 173.

[27] Mathew Belz, Provisional Application of the Energy Charter Treaty: Kardassopoulos v. Georgia and Improving Provisional Application in Multilateral Treaties, 22 Emory International Law Review, 2008, pp. 3-44. Treaties, 22 Emory International Law Review, 2008, pp.748-749.