287
related agreements. As is well known, the ECJ may not decline to rule in a case
brought before it.
11
In this context, the ECJ has done outstanding work in the last 25 years or so in
relation to this field. For the purposes of the analysis of the ECJ’s activity in relation
to these issues provided in this chapter, only those ECJ judgments explicitly mentioning or analysing an UNCLOS provision will be taken into account. Therefore,
no reference will be made to those judgments in which the ECJ has only mentioned
concepts contained in UNCLOS unless the ECJ judges make explicit reference to
the Convention. Likewise, this chapter will not analyse any cases in which the
Advocates Generals referred to UNCLOS, but the ECJ judgments themselves make
no explicit reference to it.
In consideration of the above, this book chapter will be divided into three main
parts. The first part will address the relationship between UNCLOS and the EU
legal order; the second part will focus on the legal reasons for the work done by the
ECJ on UNCLOS; and the third part will examine the presence of UNCLOS in ECJ
case law (from the case Commission v. United Kingdom (C-146/89, July 1991), to
the case Parliament v. Council (C-263/14, June 2016)).
2 The United Nations Convention on the Law of the Sea
and the European Union Legal Order
UNCLOS is a mixed agreement. It therefore has had the same legal status under EU
law as purely EU agreements since its entry into force. This situation poses complex
challenges for both the EU and its Member States due to the scope of the EU’s competences.
12
The EU has exclusive competence in some matters covered by UNCLOS
provisions and shared competences with its Member States in certain other fields.
As the ECJ stated in the MOX Plant case, the EU and all of its Member States
concluded UNCLOS in accordance with a shared competence. Hence, there is an
obligation of close cooperation in fulfilling the commitments undertaken by them
under joint competence when they conclude a mixed agreement.
13
This obligation
exists both in the framework of the EU and on the international stage (during the
process of negotiation and conclusion, as well as to enforce the assumed
obligations).
14
The ECJ also ruled that the EU “must respect international law in the
11 See Vida (2013), p. 107.
12 See Boelaert-Suominen (2008), p. 668.
13 Commission v. Ireland, paras 175–176. See also ECJ, Dior and others, joint cases C-300/98 and
C-392/98, Judgment, 14 December 2000, para. 36.
14 See: ECJ, Opinion 1/94 pursuant to Article 228(6) of the EC Treaty, ECLI:EU:C:1994:384,
Opinion, 15 November 1994. This Opinion ascertained whether the EU is competent to conclude
international agreements concerning services and the protection of intellectual property.
The European Court of Justice and the Interpretation of the United Nations Convention…
related agreements. As is well known, the ECJ may not decline to rule in a case
brought before it.
11
In this context, the ECJ has done outstanding work in the last 25 years or so in
relation to this field. For the purposes of the analysis of the ECJ’s activity in relation
to these issues provided in this chapter, only those ECJ judgments explicitly mentioning or analysing an UNCLOS provision will be taken into account. Therefore,
no reference will be made to those judgments in which the ECJ has only mentioned
concepts contained in UNCLOS unless the ECJ judges make explicit reference to
the Convention. Likewise, this chapter will not analyse any cases in which the
Advocates Generals referred to UNCLOS, but the ECJ judgments themselves make
no explicit reference to it.
In consideration of the above, this book chapter will be divided into three main
parts. The first part will address the relationship between UNCLOS and the EU
legal order; the second part will focus on the legal reasons for the work done by the
ECJ on UNCLOS; and the third part will examine the presence of UNCLOS in ECJ
case law (from the case Commission v. United Kingdom (C-146/89, July 1991), to
the case Parliament v. Council (C-263/14, June 2016)).
2 The United Nations Convention on the Law of the Sea
and the European Union Legal Order
UNCLOS is a mixed agreement. It therefore has had the same legal status under EU
law as purely EU agreements since its entry into force. This situation poses complex
challenges for both the EU and its Member States due to the scope of the EU’s competences.
12
The EU has exclusive competence in some matters covered by UNCLOS
provisions and shared competences with its Member States in certain other fields.
As the ECJ stated in the MOX Plant case, the EU and all of its Member States
concluded UNCLOS in accordance with a shared competence. Hence, there is an
obligation of close cooperation in fulfilling the commitments undertaken by them
under joint competence when they conclude a mixed agreement.
13
This obligation
exists both in the framework of the EU and on the international stage (during the
process of negotiation and conclusion, as well as to enforce the assumed
obligations).
14
The ECJ also ruled that the EU “must respect international law in the
11 See Vida (2013), p. 107.
12 See Boelaert-Suominen (2008), p. 668.
13 Commission v. Ireland, paras 175–176. See also ECJ, Dior and others, joint cases C-300/98 and
C-392/98, Judgment, 14 December 2000, para. 36.
14 See: ECJ, Opinion 1/94 pursuant to Article 228(6) of the EC Treaty, ECLI:EU:C:1994:384,
Opinion, 15 November 1994. This Opinion ascertained whether the EU is competent to conclude
international agreements concerning services and the protection of intellectual property.
The European Court of Justice and the Interpretation of the United Nations Convention…