EU Statement – UN General Assembly 6th Committee: Cluster I: Report of the ILC on the work of its 76th and 77th sessions

Mr/Ms Chairperson,

1. The European Union would like to congratulate the ILC and the Special Rapporteur, Mr. Charles Chernor Jalloh, for the progress made on subsidiary means.

2. It welcomes the adoption of the entire set of draft conclusions with commentaries on first reading.

Mr/Ms Chairperson,

On the form

1. We welcome the form of "draft conclusions". This is consistent with the ILC output on sources of international law and other related issues of international law.

2. Identification of customary international law; general principles of law; identification and legal consequences of peremptory norms of general international law (jus cogens); and subsequent agreements and subsequent practice in relation to the interpretation of treaties.¹

On the drafting

1. We have one observation on the drafting of conclusion 2. The chapeau uses the word 'include'. This choice of word could indicate that the list in points (a) to (c) is not a closed one and that there are other subsidiary means than those listed below. At the same time, point (c) refers to 'any other means generally used'. In view of this "catch-all" phrase, we wonder how the word "include" should be understood in the chapeau. In case there would be further means apart from those listed in points (a) to (c), "include" is the right choice. If that is not the case, it would be preferable to use another verb in the chapeau, such as "Subsidiary means for the determination of rules of international law are".

On the substance

1. First, the European Union welcomes that the commentaries to draft conclusion 2 explicitly refer to the Court of Justice of the European Union. 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.²

2. Second, the EU suggests that paragraph (9) of the commentary to draft conclusion 2 include criteria on how to define "courts and tribunals" and refer to our comments on previous years to this effect. 3

3. Third, draft conclusion 4 lists six criteria how to assess subsidiary means. The EU agrees that it is not possible to rank them in a hierarchical way. However, some means may still be more important than others. Therefore, the EU welcomes paragraph (7) of the commentary on draft conclusion 4, according to which the quality of reasoning is mentioned as 'probably the most important consideration'.

4. Fourth, concerning paragraph (10) of the commentary to draft conclusion 6 the European Union would like to draw the attention of the ILC to the fact that the CJEU is also competent to provide binding decisions in reply to preliminary ruling requests coming from national courts of the Union's Member States. 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".⁴

[1] Identification of customary international law; general principles of law; identification and legal consequences of peremptory norms of general international law (jus cogens); and subsequent agreements and subsequent practice in relation to the interpretation of treaties.

[2] The latest cases deal with three aspects of important rules of customary international law, namely the principle of self-determination, including the requirement of consent and the relative effect of treaties. See C-778/21P and C-798/21P ('Front Polisario').

[3] Examples of these criteria to define a "Court or Tribunal" 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 bono principles, (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").

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

Settlement of disputes to which international organizations are parties

(UNGA 6th Committee, 81st session, 2026)

Ms./Mr. President,

1. I have the honour to speak on behalf of the European Union.

2. Let me start by warmly congratulating the Special Rapporteur, Mr. August Reinisch, for his work on the topic of 'Settlement of disputes to which international organizations are parties'. The quality of his three reports has enabled the ILC to bring to a successful conclusion its first reading of the draft guidelines on settlement of disputes to which international organizations are parties.

3. The EU welcomes the adoption, by the ILC, of the draft guidelines together with commentaries thereto on first reading.

4. The EU moreover takes note of the ILC's decision to transmit the draft guidelines, through the Secretary-General, to Governments and relevant international organisations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2027.

5. Accordingly, the EU may decide to submit comments and observations on the draft guidelines by 1 December 2027. Today, it will therefore limit itself to a few observations on the issue of disputes between international organisations and private parties, which is the focus of the Special Rapporteur's third report and was discussed by the ILC mainly in 2026. As highlighted by the Special Rapporteur in his third report, "in practice, the most pressing questions relate to the settlement of disputes of a private law character".

6. First, the EU welcomes the particularly thorough analysis of the available practice of the settlement of disputes between international organisations and private parties, including the references to the law and practice of regional economic integration organisations.

7. Second, the EU takes note of the carefully calibrated approach contained in draft guidelines 9 to 11, which balances the immunity of international organisations on the one hand with the requirement of access to justice on the other. Draft guideline 9 provides that the immunity of international organisations is to be respected, without implying that such immunity would prevail in every case. While this clarification is welcome, draft guideline 9 could also address the possibility of an exception to immunity in cases where the judicial proceedings at issue clearly do not impair the independent and effective performance of the functions of the international organisation concerned. At the same time, draft guideline 10 contains an obligation for international organisations enjoying immunity to endeavour to settle disputes with private parties and to make provision for appropriate modes of settlement of disputes. This provision constitutes an important building block in promoting access to justice in the event of disputes involving international organisations, which enjoy immunity.

8. While the expression "modes of settlement of disputes" is used in various treaties on privileges and immunities, it is only used in draft guideline 10, while the remainder of the draft guidelines consistently refer to "means of dispute settlement". The latter notion is defined in draft guideline 2(d) in a broad manner, but the draft guidelines do not provide for a definition of "modes of settlement of disputes". On the relationship between these two notions, the commentary states that "modes" (as well as "methods") broadly overlap with "means" of dispute settlement. At the same time, for the purpose of the draft guidelines, the use of "modes of settlement of dispute" only in draft guideline 10 creates a degree of avoidable terminological uncertainty, in a guideline of considerable importance.

9. Third, draft guideline 12 provides that means of dispute settlement of an adjudicatory character shall conform to procedural rule of law as well as human rights requirements, including the independence and impartiality of adjudicators and due process. As confirmed by the commentary⁶, the references to independence and impartiality as well as due process in draft guideline 12 are illustrative. These references relate to core rule of law and human rights requirements do not constitute an exhaustive list.

10. Finally, the illustrative nature of the references in draft guideline 12 ensures that other rule of law and human rights requirements of a procedural nature are also within the scope of draft guideline 12. In the interest of clarity and legal certainty, the ILC could seek to expand on these "other rule of law and human rights requirements" in the commentary. This would appear to be particularly useful in view of the normative language used in draft guideline 12.

11. In conclusion, the European Union wishes to express its appreciation for the work done by the ILC on this topic leading up to the adoption of the draft guidelines on first reading. This topic is of particular importance for the European Union as an international organisation that is a regular party to disputes, including disputes with private parties.

    Thank you.

    [6] Commentary on draft guideline 12, paragraph (16).