Abstract
The contribution of international organisations (IOs) to the process of identification, codification or development of rules of general international law is one still enveloped in a measure of mystery. While the United Nations (UN) International Law Commission (ILC) has long relied on IOs’ practice, and the practice of States within IOs, in carrying out its work, it has only recently begun to address the role that IOs might play in the formation or expression of rules of customary international law, jus cogens or general principles of law. In this process, the European Union (EU) has long been seen as an ‘odd’ fit. From the point of view of general international law, EU integration forms an apparent paradox: on the one hand, the degree of transfer of powers to the organisation renders it particularly well suited to be a ‘jus generative’ force and a useful source of practice for the ILC’s work; on the other, its ‘exceptionalism’ often militates against the reliance on EU-related practice as evidence of existing or emerging rules of general application. This article looks at the effects of this ‘integration paradox’ in the ILC’s work by reviewing the references to, and the use of, EU practice in eight distinct codification projects, combined with interviews with ILC members and EU officials. It provides an ILC (outside) view on the relevance of EU practice for the identification, codification, and development of rules of general international law. This view, in turn, has implications for the operation of an EU (inside) foreign policy objective: its ambition to contribute to the development of international law, as expressed in Article 3(5) of the Treaty on European Union (TEU).
Highlights
The contribution of international organisations (IOs) to the process of identification, codification or development of rules of general international law is one still enveloped in a measure of mystery
While the European Union (EU)’s ‘exceptionalism’ has not prevented the International Law Commission (ILC) from occasionally proposing rules grounded on, or inspired by, the EU legal system or its international practice – where little practice or precedent were available to support the ILC in its work, or where EU-related practices were aligned with the normative aims of a particular project – these attempts at generalisation have often been met with strong objections by States at the Sixth Committee
By explaining how the ILC relies on the practice of IOs in its work, and how it has conceptualised the legal relevance of this practice to the formation and expression of rules of general international law, this article laid bare a paradox of integration, one with which the EU must live when making statements on the work of the ILC
Summary
A paradox is an apparent contradiction; a statement that runs counter to one’s expectations and seems to carry an inner conflict lest explained. The choice of whether or not to make a statement follows an assessment of the EU competence and relevant practice on the topic, and of the EU’s own perception of the ILC’s authority and of the impact of its work on EU external relations It involves a ‘fingertip feel’ on whether the matter should be left to the sole consideration of (Member) States – who retain their right to make individual statements – or include an EU dimension.. They first outline the working methods and mandate of the ILC, and how this body has relied on (and conceptualised the legal relevance of) the practice of IOs in its work, before distinguishing the EU from this larger category of institutional actors
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