289
on various occasions,
22
when it adopts an act, the EU “is bound to observe international law in its entirety, including customary international law, which is binding
upon the institutions of the EU”.
The continuing role of customary law is also recognised by UNCLOS. The last
paragraph of its Preamble states that “matters not regulated by this Convention continue to be governed by the rules of general international law”. For Treves,
23
the fact
that UNCLOS has not yet been ratified by all the states means that amongst nonparties and in relations between parties and non-parties customary rules apply,
except in particular disputes involving states party to the earlier Geneva Convention.
Therefore, regarding the hierarchy of sources of EU law, UNCLOS ranks below
the primary sources but above secondary legislation.
24
It also has primacy over
domestic law.
25
Moreover, Articles 280 and 282 UNCLOS preserve the autonomy of
the EU legal system and the dispute settlement mechanisms under general, regional
or bilateral agreements.
26
Therefore, all secondary legislation must be interpreted in
conformity with UNCLOS. According to Art. 216(2) TFEU, EU institutions are
bound by any international agreements that the EU concludes and, consequently,
these international legal instruments have primacy over EU acts.
27
UNCLOS, like
the WTO/GATT Agreement, clearly belongs to a specific category of international
agreements that are not considered to confer direct rights on individuals.
28
3 The United Nations Convention on the Law of the Sea
and the European Court of Justice
According to Art. 282 UNCLOS, with regard to the dispute settlement regime
applied between EU Member States, EU primary law prevails, in principle, over the
procedures provided for under UNCLOS.
29
Thus, this UNCLOS provision seeks to
further elaboration in the form of special norms contained in specific treaties. There is extensive
literature on the sources of the international law of the sea and the legal scope of the UNCLOS
provisions. In this regard, see: Treves (1991), pp. 43–60; Daillier and Pellet (2002), pp. 1147–
1153; Pancracio (2010), pp. 27–50; Tanaka (2015), pp. 9–13.
22 In this regard, see Poulsen and Diva Navigation, paras 9–10; Air Transport Association of
America and others, para. 101.
23 See Treves (2015a), p. 13.
24 Long (2012), p. 713; Alì (2013), p. 890; Paasivirta (2015), pp. 1062–1063.
25 Sobrino Heredia (1992), p. 137.
26 In this regard, see: Long (2012), p. 718, and (2014), p. 174.
27 Air Transport Association of America and others, para. 50. This judicial position had been
affirmed before by ECJ, Commission v. Germany, C-61/94, EU:C:1996:313, Judgment, 10
September 1996, para. 52; ECJ, Algemene Scheeps Agentuur Dordrecht, C-311/04, EU:C:2006:23,
Judgment, 12 January 2006, para. 25; Intertanko and others, para. 42; Kadi and others v. Council
and Commission, para. 307.
28 As the ECJ ruled in the Intertanko case. In this regard, see Paasivirta (2015), p. 1067.
29 ECJ, Commission v. Ireland, para. 125. For a detailed analysis of the dispute settlement mechanism provided for by UNCLOS, see Gautier (2016), and Jesus (2015).
The European Court of Justice and the Interpretation of the United Nations Convention…
on various occasions,
22
when it adopts an act, the EU “is bound to observe international law in its entirety, including customary international law, which is binding
upon the institutions of the EU”.
The continuing role of customary law is also recognised by UNCLOS. The last
paragraph of its Preamble states that “matters not regulated by this Convention continue to be governed by the rules of general international law”. For Treves,
23
the fact
that UNCLOS has not yet been ratified by all the states means that amongst nonparties and in relations between parties and non-parties customary rules apply,
except in particular disputes involving states party to the earlier Geneva Convention.
Therefore, regarding the hierarchy of sources of EU law, UNCLOS ranks below
the primary sources but above secondary legislation.
24
It also has primacy over
domestic law.
25
Moreover, Articles 280 and 282 UNCLOS preserve the autonomy of
the EU legal system and the dispute settlement mechanisms under general, regional
or bilateral agreements.
26
Therefore, all secondary legislation must be interpreted in
conformity with UNCLOS. According to Art. 216(2) TFEU, EU institutions are
bound by any international agreements that the EU concludes and, consequently,
these international legal instruments have primacy over EU acts.
27
UNCLOS, like
the WTO/GATT Agreement, clearly belongs to a specific category of international
agreements that are not considered to confer direct rights on individuals.
28
3 The United Nations Convention on the Law of the Sea
and the European Court of Justice
According to Art. 282 UNCLOS, with regard to the dispute settlement regime
applied between EU Member States, EU primary law prevails, in principle, over the
procedures provided for under UNCLOS.
29
Thus, this UNCLOS provision seeks to
further elaboration in the form of special norms contained in specific treaties. There is extensive
literature on the sources of the international law of the sea and the legal scope of the UNCLOS
provisions. In this regard, see: Treves (1991), pp. 43–60; Daillier and Pellet (2002), pp. 1147–
1153; Pancracio (2010), pp. 27–50; Tanaka (2015), pp. 9–13.
22 In this regard, see Poulsen and Diva Navigation, paras 9–10; Air Transport Association of
America and others, para. 101.
23 See Treves (2015a), p. 13.
24 Long (2012), p. 713; Alì (2013), p. 890; Paasivirta (2015), pp. 1062–1063.
25 Sobrino Heredia (1992), p. 137.
26 In this regard, see: Long (2012), p. 718, and (2014), p. 174.
27 Air Transport Association of America and others, para. 50. This judicial position had been
affirmed before by ECJ, Commission v. Germany, C-61/94, EU:C:1996:313, Judgment, 10
September 1996, para. 52; ECJ, Algemene Scheeps Agentuur Dordrecht, C-311/04, EU:C:2006:23,
Judgment, 12 January 2006, para. 25; Intertanko and others, para. 42; Kadi and others v. Council
and Commission, para. 307.
28 As the ECJ ruled in the Intertanko case. In this regard, see Paasivirta (2015), p. 1067.
29 ECJ, Commission v. Ireland, para. 125. For a detailed analysis of the dispute settlement mechanism provided for by UNCLOS, see Gautier (2016), and Jesus (2015).
The European Court of Justice and the Interpretation of the United Nations Convention…