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

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

Mr. Chairperson,

The European Union has the honour to address the Sixth Committee on the work of the International Law Commission (ILC) relating to the topic of Settlement of disputes to which international organizations are partiesbased on the second report prepared by Special Rapporteur Mr. August Reinisch.

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

As an International Organization, the European Union is greatly interested in this topic, and welcomes the further work of the ILC on this important topic.

Building on its observations on the first report prepared by the Special Rapporteur and in view of the continuing work of the ILC on this topic, the European Union would like to make the following specific observations on draft guidelines 3 to 6 as well as the commentaries thereto for possible further consideration by the ILC.

Mr. Chairperson,

Draft guideline 2 addresses the use of terms. Draft guideline 2(c) provides that "means of dispute settlement" refers to negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of resolving disputes. While draft guideline 4 refers to "the means of dispute settlement referred to in draft guideline 2, subparagraph (c)", draft guideline 5 refers to "[t]he means of dispute settlement", with the addition of "including arbitration and judicial settlement, as appropriate".

The European Union notes that draft guideline 2, in subparagraph (c), provides a definition of "means of dispute settlement", by listing such means in a non-exhaustive manner. To the extent that other draft guidelines refer to means of dispute settlement, as defined in draft guideline 2, subparagraph (c), there would therefore be no need to specifically reference the guideline in which that definition is provided. Thus, in draft guideline 4 the words "referred to in draft guideline 2, subparagraph (c)" could be omitted. Moreover, given that the definition includes arbitration and judicial settlement, the addition of "including arbitration and judicial settlement, as appropriate" in draft guideline 5 would in principle be redundant.

At the same time, the European Union notes that, as explained in commentary (3) to draft guideline 5, while negotiations or consultations are practically always available, this is not the case for dispute settlement involving third parties. Against this background, the aim of draft guideline 5 appears to be to make the latter means of dispute settlement more "widely accessible" (or "practically available", as stated in commentary (3) to draft guideline 5), rather than those means of dispute settlement that are practically always available. However, the reference to "the means of dispute settlement, including arbitration and judicial settlement" appears to translate this aim in a manner essentiallygoing beyond the aim.

Against this background, the European Union would suggest to consider specifying in draft guideline 5 those means of dispute settlement, which require being accessible more widely. A wider accessibility of means of dispute settlement involving third party adjudication would be without prejudice to the right of the parties to a dispute to determine the appropriate means of dispute settlement "of their own choice" (see Article 33 UN Charter), as recognized in commentary (3) to draft guideline 4. In the event the parties to a dispute had previously agreed to a system of mandatory adjudication, for instance in a public international law instrument setting up an international organization, their choice to determine the appropriate means of dispute settlement might be limited by the obligations undertaken therein.

This is for instance the case of the disputes between the Member States and the institutions of the European Union.

The European Union would like to reaffirm that, while the European Union has been established by public international law instruments, these instruments have established a newlegal order. Under Article 344 of the Treaty on the Functioning of the European Union (TFEU), Member States undertook not to submit a dispute concerning the interpretation or application of the EU Treaties to any method of settlement other than those provided for in those Treaties. Hence, in accordance with the jurisprudence of the Court of Justice of the European Union, any internal disputes (be it between two or more EU Member States amongst themselves or between one or more EU Member State and the EU institutions) in relation to European Union law, including when implementing public international law obligations, fall within the exclusive jurisdiction of the Court of Justice of the European Union. While public international law principles can still be used for interpretative purposes by the Court of Justice of the European Union, these disputes are governed by European Union law and remain subject to the specificities of that legal framework.

In any event, the European Union understands that, according to commentary (4) to draft guideline 5, the addition of "as appropriate" after "including arbitration and judicial settlement" in draft guideline 5 is to stress the absence of a hierarchy between the different means of dispute settlement and aligns with draft guideline 4, according to which different means of dispute settlement may be appropriate. The European Union considers that neither the definition of "means of dispute settlement" nor the recommendation in draft guideline 4 to settle disputes by the means of dispute settlement that may be appropriate to the circumstances and the nature of the dispute imply any hierarchy of means of dispute settlement. Thus, the addition of "as appropriate" appears to be essentially redundant.

The European Union welcomes the reference to the law and practice of regional economic integration organizations in paragraphs (5) and (6) of the commentary on draft guideline 3.

The European Union moreover welcomes draft guideline 4 according to which disputes within the scope of the draft guidelines "should be settled" in good faith and in a spirit of cooperation by the means of dispute settlement that may be appropriate to the circumstances and the nature of the dispute. This wording leaves sufficient flexibility to take account of the situation of regional integration organizations such as the European Union, where particular judicial means of dispute settlement are mandatory.

The European Union welcomes the reference to core elements of compliance with the rule of law in the context of dispute settlement in draft guideline 6 and agrees that they give specific expression to the concept of the rule of law. Draft guideline 6 is formulated as an obligation. Given that the requirements referred to in draft guideline 6 stem from the applicable rules of international law (see point 8 of the commentary on draft guideline 6), it could therefore be made clear that draft guideline 6 is not constitutive but rather declaratory of an obligation under international law.

The European Union moreover notes that the heading of draft guideline 6 refers to "[r]equirements for arbitration and judicial settlement". While this draft guideline focuses on certain core elements of the concept of rule of law, it does not lay down any other requirements pertaining to arbitration and judicial settlement (such as, in the case of arbitration, the appointment of arbitrators, for instance). In order to clarify its material scope, the heading of draft guideline 6 could be redrafted as follows: "Rule of law requirements for arbitration and judicial settlement".

Mr. Chairperson,

In conclusion, the European Union wishes to express its appreciation once again for the work done so far by the ILC on this important topic and is looking forward to continuing and contributing further to the debates on this matter in the 6th Committee.

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