EU Statement – UN General Assembly 6th Committee: Report of the International Law Commission on Non-legally binding international agreements
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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 is an honor for me to address the 6th Committee, on behalf of the European Union, on this important topic under the consideration before the International Law Commission (ILC) presented in Chapter VIII of the 2024 ILC Report.
The Candidate Countries Montenegro*, Serbia*, Albania*, Ukraine, the Republic of Moldova, Bosnia and Herzegovina* and Georgia, align themselves with this statement.
In this regard, I would like to congratulate the ILC and specially the Special Rapporteur, Mr. Mathias Forteau, on his excellent work and for the elaboration of the first report on the topic.
In the view of the European Union, the considerable growth in the practice of non-legally binding instruments at international level justifies including this topic into the programme of the ILC.
The European Union would like to present the following comments on conclusions appearing in the first report as these comments may be of relevance to the future work of the Commission on this topic.
Firstly, the European Union supports the generally agreed conclusion that non-legally binding international instruments are not, as such, governed by the law of treaties. States and international organisations are nevertheless still bound by rules of international law when concluding such instruments, including the peremptory norms of general international law (jus cogens).
Secondly, concerning the use of the term “agreement”, the European Union takes note of the position of the Special Rapporteur explaining the reasons why this term should be preferred to other suggested terms, such as “instruments” or “arrangements”. The European Union understands that the term “agreement” is mainly referring to a meeting of the will (mutual consent) of the parties. The European Union would nevertheless point out that EU law[1] reserves the term ”agreement” for legally binding instruments. Therefore, from the perspective of EU law, it might be preferable to draw a distinction between non-binding instruments on one side and international legally binding agreements concluded by the European Union, on the other side. Moreover, as regards non-legally binding international instruments, the EU institutions have established a practice using the very term “non-binding instrument”. The European Union would thus express a preference for the use of the term “non-legally binding international instruments”.
The European Union welcomes the addition of the words “non-legally binding”, as it helps to avoid possible confusion with treaties, which are legally binding under international law, within the meaning of Article 2(1)(a) of the Vienna Convention on the Law of Treaties.
The European Union would add that the title of an instrument alone should not be the decisive factor for determining its nature as non-legally binding.
Thirdly, the European Union supports the views expressed by several members of the International Law Commission that the scope of the topic should cover only non-legally binding international instruments, and should include instruments between States, between States and international organizations, and between international organizations. This should also cover bilateral, regional and multilateral instruments, including exchanges of letters. By contrast, the European Union agrees with the Special Rapporteur that unwritten instruments should be excluded from the work of the International Law Commission on this topic. The same would apply for instruments with private persons which should be considered as falling outside the scope of the topic. In relation to the resolutions adopted by international organisations, the European Union would plead in favour of excluding them from the scope of the work of the International Law Commission, as resolutions may be considered as unilateral acts and certain of their effects depend on the internal rules of the international organisation at stake.
Fourthly, The European Union further agrees that an important criterion in distinguishing between legally and non-legally binding instruments should be the intention of the parties as it appears from the text of the instruments. A holistic approach, taking into account both objective and subjective criteria, may be considered for the further work of the Commission. The objective criteria may include the wording used in the text, the form and the circumstances surrounding an instrument’s formation. In the European Union’s view, the assessment on the nature of an instrument should be carried out on a case-bycase basis and all criteria should be considered and weighed together.
Fifthly, the European Union shares the view that a clear distinction should be made between “legally binding” international instruments or instruments having “legally binding force” on the one hand, and agreements “having legal effects”, one the other hand. The European Union notes that the potential legal effects of non-binding international instruments will be subject of further examination carried out by the Special Rapporteur.
Finally, the European Union would express its support to the proposal of the Special Rapporteur to request information on the practice of States, international organizations and, also access to the work carried out on the subject in the context of the Council of Europe’s Committee of Legal Advisers on Public International Law (CAHDI). The European Union – as a regional international organisation - is ready to provide the International Law Commission with information regarding its extensive practice concerning non-legally binding international instruments.
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.
Thank you for your attention.
* Montenegro, Serbia, Albania and Bosnia and Herzegovina continue to be part of the Stabilisation and Association Process.
[1] Title V of the Treaty on the Functioning of the European Union