European External Action Service

10/24/2024 | Press release | Distributed by Public on 10/25/2024 15:09

EU Statement – UN General Assembly 6th Committee: Report of the International Law Commission and Subsidiary means

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*In accordance with Resolution 65/276 (Participation of the European Union in the work of the United Nations).

Mr. Chairperson,

It in an honour for me to address the 6th Committee, on behalf of the European Union, on subsidiary means for the determination of rules of international law.

The Candidate Countries Montenegro*, Serbia*, Albania*, Ukraine, the Republic of Moldova, Bosnia and Herzegovina*and Georgia, align themselves with this statement.

The European Union would like to congratulate the ILC and the Special Rapporteur, Mr. Charles Chernor Jalloh, with the progress made in the consideration of this important topic.

It welcomes the provisional adoption of draft conclusions no 4 to 8 on subsidiary means for the determination of rules of international law and the commentaries to them, and would like to present some first remarks in relation to them.

Mr. Chairperson,

The European Union supports the envisaged form of the final output of the work of the ILC on this topic. Indeed, "conclusions" would be the appropriate form, consistent with the output of the work of the ILC on other topics addressing the sources of international law and other related issues of international law.

On substance: first, the European Union welcomes that the commentary to paragraph 1 of draft conclusion 4 explicitly refers to the Court of Justice of the European Union (paragraph (3) of the commentary under footnote 85) as a regional judicial body. Indeed, the CJEU has substantial case-law dealing with matters of international law and its jurisprudence could be an instructive subsidiary means for the determination of rules of international law.

Second, as to paragraphs (4) and (5) of the commentary to paragraph 1 of draft conclusion 4: the European Union recalls its comments on the topic made in the 6th Committee last year concerning draft conclusion 2, where decisions of "courts and tribunals" are referred to. In view of the importance of the definition of the notion "courts and tribunals", the European Union suggests once again that additional explanations be added in the commentaries as regards what a "court or tribunal" is, and invites the Commission to consider doing so along the lines as proposed by the European Union previously. To recall, while accepting a broad notion of these terms, there should be some criteria that distinguish these from other bodies. Examples of these criteria could be: (1) whether the body is established by law, (2) whether the body's jurisdiction is compulsory and/or whether the body has the power to issue binding decisions for the parties to the dispute, (3) whether the body applies rules of law or decides on the basis of ex aequo et bonoprinciples, (4) whether the body is independent and impartial. All other bodies which do not fulfil the criteria but yet their work may be useful for the determination of rules of international law, should fall under letter c) of draft conclusion 2 (i.e. "Any other means derived from the practices of States or international organizations").

As regards paragraphs (7)-(11) of the commentary to paragraph 1 of draft conclusion 4, the European Union concurs with the qualification of the International Court of Justice (ICJ) as "the only international tribunal to date with general subject matter jurisdiction". While not implying a hierarchical relationship between the decisions of the ICJ and those of other international tribunals, the European Union agrees with the Commission in pointing to the unrivalled legitimacy of the ICJ, described by the notion of "World Court".

Third, the European Union would like to address the nature and function of subsidiary means referred to in draft conclusion 6 and the related commentary.

Regarding the first paragraph of draft conclusion 6, and to reiterate its comments made in its previous statement on this topic, the European Union would like to confirm that it concurs that subsidiary means referred to in Article 38 (1) (d) of the Statute of the ICJ are not a source of international law. The European Union remains of the view that the Commission may wish to explain the differences between the two categories further by stressing that the role of subsidiary means is to assist in the interpretation, application and development of the will expressed by subjects of international law.

In terms of the placement of draft conclusion 6 (also contemplated by the Commission in paragraph (8) of the commentary to this conclusion), the European Union would like to propose to move this conclusion right after current draft conclusion 2, as draft conclusion 3. Its content is intrinsically related to that of draft conclusion 2 and having them next to each other could greatly enhance the coherence of the conclusions.

Fourth, the European Union notes that under paragraph (10) of the commentary to draft conclusion 7, the Court of Justice of the European Union (CJEU) is mentioned. Further to the examples cited by the Commission, the European Union would like to draw the attention of the Commission that the CJEU is competent to provide binding decisions also in reply to preliminary ruling requests coming from national courts of the Union's Member States.[1] In these cases, the rulings of the CJEU are binding on the referring national court on points of law regarding the interpretation and validity of measures of Union law. These judgments in preliminary reference procedures "conclusively determine […] questions of [Union] law and [are] binding on the national court for the purposes of the decision to be given by it in the [national] proceedings".[2][3]

Fifth, concerning draft conclusion 8, while it is clear from the wording "inter alia" used in the chapeau of this conclusion that the list is not closed, and that other considerations can be taken into account when weighing the decisions of courts and tribunals, it may be useful to add some additional elements. Since this draft conclusion relates equally to international, regional and national courts and tribunals, the European Union would like to raise again the issue of the hierarchy of national courts. The European Union has raised this matter in its previous statement on the topic made in the 6th Committee last year, but it is noted that it has not been reflected in the current report. To recall, it is the view of the European Union that it could be clarified, potentially in the text of conclusion 8 but, in any event, in the commentary to this conclusion that when weighing the decisions of national courts and tribunals, the level of national courts should be taken into account. Not all court decisions necessarily carry the same weight and the context of the decision, including the placement of a court within the national court system, should be taken into account. Accordingly, the decisions of courts against whose decisions there is no judicial remedy under national law in a given case should enjoy the highest authoritative value. In turn, a national court's decision that has been overturned (or is currently on appeal) should not, as a matter of principle, be relied upon under Art. 38 (1) (d) of the ICJ Statute.

Mr. Chairperson,

In conclusion, the European Union wishes to once again express its appreciation for the work done so far by the ILC on this important topic. This topic is of particular importance for the European Union as an international actor who actively contributes to the formation of various sources of international law. Indeed, the European Union does not only have treaty-making powers, but in view of its special characteristics as an international organisation, it also contributes to the formation of customary international law (which was recognised by the ILC in its work on the related topic and is also subject to academic studies) and of general principles of law, as explained in the European Union's intervention on the work of the ILC on that topic.

The European Union will, thus, actively participate in the consideration of this topic and is looking forward to continuing further debates on the matter in the 6th Committee.

Thank you for your attention.

*Montenegro, Serbia, Albania and Bosnia and Herzegovina continue to be part of the Stabilisation and Association Process.

[1]See Article 19 of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union.

[2]See the Order of the CJEU of 5 March 1986 in case 69/85, Wünsche, [ECLI:EU:C:1986:104], para.

[3].