288
exercise of its powers”.
15
All these issues were again raised in the Council v.
Commission case.
16
On that occasion, amongst other things, the European
Commission’s capacity to represent the EU before international tribunals was questioned. Thus, on the one hand, the ECJ reviewed the legality of the Commission’s
actions in Case No 21 brought before the International Tribunal for the Law of the
Sea (hereinafter, ITLOS) on the request for an advisory opinion submitted by the
Sub-Regional Fisheries Commission.
17
On the other hand, the ECJ determined EU
law on the Commission’s and the Council’s respective powers in relation to the
ITLOS advisory opinion.
18
UNCLOS was the first major multilateral convention of this kind. Undoubtedly,
international treaties are an integral part of EU law. Under Art. 216(2) TFEU,
“Agreements concluded by the Union are binding upon the institutions of the Union
and on its Member States”. However, although in accordance with this provision
international treaties concluded under the conditions set out in that article are binding on the EU’s institutions and Member States, “that primacy at the level of
Community law would not, however, extend to primary law”.
19
Whilst Art. 216(2)
TFEU says nothing on the status of customary international law, the ECJ’s practice
has confirmed that customary law is also binding on the EU and its institutions and
is part of its legal order.
20
The ECJ has already ruled that the principle that each state
has complete and exclusive sovereignty over its airspace, the principle that no state
may validly purport to subject any part of the high seas to its sovereignty, and the
principle of freedom to fly over the high seas are considered to embody the current
state of customary international maritime and air law.
21
Thus, as the ECJ has noted
15 See: ECJ, Poulsen and Diva Navigation, C-286/90, EU:C:1992:453, Judgment, 24 November
1992, para. 9; ECJ, Mondiet, C-405/92, EU:C:1993:906, Judgment, 24 November 1993, paras 13–15;
and ECJ, Intertanko and others, C- 308/06, EU:C:2008:312, Judgment, 3 June 2008, para. 51.
16 ECJ, Council v. Commission, C-73/14, EU:C:2015:663, Judgment, 6 October 2015.
17 ITLOS, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion, 2 April 2015. The SRFC is a regional fisheries management organisation (RFMO) created on 29 March 1985. Headquartered in Dakar (Senegal), it is made up of seven
African countries, namely: Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and
Sierra Leona. For more details, see the official SRFC website at http://www.spcsrp.org/. The
request for an advisory opinion was prepared in February 2013 within the framework of the Atelier
sur la lutte contre les pêches illicites, non déclarées et non règlementées (PINN) (Workshop on
Combating Illegal, Unreported and Unregulated (IUU) Fishing), held in Dakar on 25–26 February
2013. See http://www.spcsrp.org/medias/csrp/comm/at_PINN_publication_web.pdf.
18 Council v. Commission, para. 55. For an analysis of this judgment, see: Oanta (2016),
pp. 208–216.
19 See ECJ, Kadi and others v. Council and Commission, joined cases C-402/05P and C-415/05P,
EU:C:2008:461, Judgment, 3 September 2008, paras 306–308.
20 In this regard, see Ammann (2015), p. 167.
21 ECJ, Air Transport Association of America and others, C-366/10, EU:C:2011:864, Judgment, 21
December 2011, paras 103–104. As is well known, the international law of the sea is customary
law, whose rules are ancient and the result of extensive state practice. UNCLOS does not currently
address all the questions that may conceivably be raised by the regulation of the marine environment and its provisions are very diverse: some reflect customary rules whilst others introduce new
concepts. Moreover, some norms were immediately put into practice whilst others have needed
G. A. Oanta
exercise of its powers”.
15
All these issues were again raised in the Council v.
Commission case.
16
On that occasion, amongst other things, the European
Commission’s capacity to represent the EU before international tribunals was questioned. Thus, on the one hand, the ECJ reviewed the legality of the Commission’s
actions in Case No 21 brought before the International Tribunal for the Law of the
Sea (hereinafter, ITLOS) on the request for an advisory opinion submitted by the
Sub-Regional Fisheries Commission.
17
On the other hand, the ECJ determined EU
law on the Commission’s and the Council’s respective powers in relation to the
ITLOS advisory opinion.
18
UNCLOS was the first major multilateral convention of this kind. Undoubtedly,
international treaties are an integral part of EU law. Under Art. 216(2) TFEU,
“Agreements concluded by the Union are binding upon the institutions of the Union
and on its Member States”. However, although in accordance with this provision
international treaties concluded under the conditions set out in that article are binding on the EU’s institutions and Member States, “that primacy at the level of
Community law would not, however, extend to primary law”.
19
Whilst Art. 216(2)
TFEU says nothing on the status of customary international law, the ECJ’s practice
has confirmed that customary law is also binding on the EU and its institutions and
is part of its legal order.
20
The ECJ has already ruled that the principle that each state
has complete and exclusive sovereignty over its airspace, the principle that no state
may validly purport to subject any part of the high seas to its sovereignty, and the
principle of freedom to fly over the high seas are considered to embody the current
state of customary international maritime and air law.
21
Thus, as the ECJ has noted
15 See: ECJ, Poulsen and Diva Navigation, C-286/90, EU:C:1992:453, Judgment, 24 November
1992, para. 9; ECJ, Mondiet, C-405/92, EU:C:1993:906, Judgment, 24 November 1993, paras 13–15;
and ECJ, Intertanko and others, C- 308/06, EU:C:2008:312, Judgment, 3 June 2008, para. 51.
16 ECJ, Council v. Commission, C-73/14, EU:C:2015:663, Judgment, 6 October 2015.
17 ITLOS, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion, 2 April 2015. The SRFC is a regional fisheries management organisation (RFMO) created on 29 March 1985. Headquartered in Dakar (Senegal), it is made up of seven
African countries, namely: Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and
Sierra Leona. For more details, see the official SRFC website at http://www.spcsrp.org/. The
request for an advisory opinion was prepared in February 2013 within the framework of the Atelier
sur la lutte contre les pêches illicites, non déclarées et non règlementées (PINN) (Workshop on
Combating Illegal, Unreported and Unregulated (IUU) Fishing), held in Dakar on 25–26 February
2013. See http://www.spcsrp.org/medias/csrp/comm/at_PINN_publication_web.pdf.
18 Council v. Commission, para. 55. For an analysis of this judgment, see: Oanta (2016),
pp. 208–216.
19 See ECJ, Kadi and others v. Council and Commission, joined cases C-402/05P and C-415/05P,
EU:C:2008:461, Judgment, 3 September 2008, paras 306–308.
20 In this regard, see Ammann (2015), p. 167.
21 ECJ, Air Transport Association of America and others, C-366/10, EU:C:2011:864, Judgment, 21
December 2011, paras 103–104. As is well known, the international law of the sea is customary
law, whose rules are ancient and the result of extensive state practice. UNCLOS does not currently
address all the questions that may conceivably be raised by the regulation of the marine environment and its provisions are very diverse: some reflect customary rules whilst others introduce new
concepts. Moreover, some norms were immediately put into practice whilst others have needed
G. A. Oanta