16. European Exceptionalism in International Law? The European Union and the System of International Responsibility

Abstract

Is a new custom emerging in favor of the existence of a special responsibility rule for regional economic integration organization (REIO) based on control? According to this special rule, the conduct of a State that executes acts under the of a REIO could be considered an act of that organization under International law, taking account of the nature of the organization’s external competence and its international obligations in the field where the conduct occurred. The ILC final Report on the responsibility of IIOO seems do not take up this possibility. As a result, these articles do not contain any rule about normative control in cases of cooperation between IIOO and states. This is due to contradictions among ECHR Case Law, WTO cases and ECJ Case Law. Whereas the trade-related has accepted that Member States act as de facto organs of the EU, for which the Union would be responsible under WTO law and International law in general, the human-rights related jurisprudence kept on attributing action of the Member States implementing Union law to the latter. Similarly, the ECJ Kadi Case militates against a special rule on attribution. These disagreements seem to deny the emergence of a new custom, even in statu nascendi. However, article 64 ARIO deals with the lex specialis principle as a means for IIOO to contract out of a given general regime of international law on the basis of their autonomy. This raises the question if some REIO have evolved until considering that a special rule over has emerged so that conduct of MMSS that execute the acts under the of these organizations may be considered acts of that organization under International law. The ILC Commentary to Article 64 of the ARIO refers to the possible existence of a special rule with regard to attribution to the EU of conduct of Member States. However, while the applicability of general international law is not completely excluded, the extent to which the general rules of international law are displaced ultimately depends on the special rules in question. As a result, derogation from general international law is a partial matter or a matter of extent. All this raises the question if some REIO have evolved until considering that a special rule over has emerged so that conduct of Member States that execute the law or acts under the of these organizations may be considered acts of that organization under International law.