France congratulates the Special Rapporteur of the International Law Commission for his report [fr]

Thank you, Mr. Chairman,

My delegation would like to thank the Special Rapporteur, Mr. August Reinisch, for the preparation of his second report on the Settlement of international disputes to which an international organization is a party. This is an important subject, with considerable practical implications, primarily for those States that have the honor of hosting international organizations on their territory.

We have taken due note of the discussions held on this subject during the working session, and have acknowledged that the Commission decided to refer draft guidelines 3, 4, 5 and 6, as they appeared in the second report, back to the Drafting Committee, taking into account the views expressed during the plenary debate.

My delegation would like to make a few brief comments in this regard.

Firstly, France endorses the general thrust of the work, which aims to build on relevant practice. In his second report, the Special Rapporteur points out that “one of the rare (well known) procedures of arbitration born out of a clause on dispute settlement appeared in the headquarters agreement in the case in 2003 between France and UNESCO on the issue of fiscal regime of pensions paid to retired civil servants of UNESCO residing in France”.

It can be pointed out that this procedure is an illustration of the way in which the different settlement means are intertwined, since it has enabled France and UNESCO to agree, through negotiation, on a mutually acceptable solution in the interests of both parties.

With regard more specifically to draft guideline 4, my delegation believes it would be appropriate to specify that disputes between international organizations or between international organizations and States should first be settled through means mutually agreed by the parties. As it stands, the draft guideline seems very open-ended, suggesting that any dispute could be settled by any of the methods set out in draft guideline 2. With regard to draft guideline 5, on the accessibility of means of dispute settlement, my delegation believes that it is important to precisely define its purpose and scope. France notes, as does the ILC, that amicable settlement, such as consultations and negotiations, are always available, and by their very nature more accessible because less costly, than dispute resolution by a third party. In cases where the international organization and the State deem it wise to resort to a third-party dispute resolution method, because the nature or circumstances of the dispute justify it, this is generally provided for by treaty or ad hoc agreement.

Furthermore, France takes due note of the fact that, according to the Commission, the draft guideline on accessibility “is not aimed at encouraging recourse to certain means of dispute settlement, primarily judicial decision or arbitration. It is based rather on the idea that the availability and the accessibility of these means would contribute to disputes being resolved through alternative means”. Indeed, it is important not to encourage parties to a dispute to resort to a particular means of settlement, such as arbitration or the courts, to the detriment of methods that do not involve a third party.

Finally, my delegation takes note of draft guideline no. 6, which states that “Arbitration and judicial settlement shall conform to the requirements of independence and impartiality of adjudicators and due process ”. This reminder refers to the general principle of proper administration of justice, and is not specific to the settlement of disputes to which an international organization is party.

My delegation reiterates its congratulations to the Special Rapporteur, Mr. Reinisch, and will follow the Commission’s further work on this subject with great interest.

Mr. Chairman,

I now come to the subject of “Subsidiary means for the determination of rules of international law”. My delegation would like to thank the Special Rapporteur, Mr. Charles Jalloh, for his work on this subject. It is part of the considerable work that the Commission has been carrying out for several years on the sources of international law.
We note that this session saw the provisional adoption by the Commission of draft conclusions 4 to 8.

I would like to make a few brief remarks in this regard.

Turning to paragraph 2 of draft conclusion 4, my delegation notes that it states that “decisions of national courts may be used, in certain circumstances, as a subsidiary means for the determination of the existence and content of rules of international law”. While we have no difficulty in recognizing such a status for decisions of international courts, we wonder about the recognition of decisions of national courts as a subsidiary means of determining rules of law. The comments under draft conclusion no. 5 do not seem fully convincing in this respect. In particular, it would need to be clarified how such recognition would relate to other sources, such as general principles of law, the very purpose of which is to transpose national principles, sometimes based on jurisprudence, into the international legal system, or custom, given that national court decisions may under certain conditions contribute to the customary process.

With regard to draft conclusion no. 5, France welcomes the reference made to the necessarily representative nature of the teachings as a subsidiary means of determining the rules of international law. Teachings emanating from a single language or legal system cannot, for example, be considered as a subsidiary means of determining the rules of international law.

We have taken careful note of draft conclusion no. 6, and France fully endorses its content. It is important to recall and maintain the key distinction between sources and subsidiary means. This fundamental reminder would undoubtedly have been better placed earlier in the draft conclusions, for example in draft conclusion no. 2.

Finally, my delegation wonders whether draft conclusions n°7 and n°8 would not have benefited from being merged, in order to streamline their purpose. Our understanding of these draft conclusions is that they both deal with the conditions under which judicial decisions can be used as a subsidiary means of determining the rules of international law.

My delegation would like to thank the Special Rapporteur, Mr. Charles Jalloh, for his second report, and assure him of our support in the continuation of his work.

Thank you, Mr. Chairman.