the scope and extent of the participation of the organization.
5 Moreover, it is also
deemed “to address the question of the international responsibility of the Union and
its Member State under such ‘mixed agreements’.”
6 The European Community
submitted its Declaration of competence upon the signature of the UNCLOS on
7 December 1984, and made a Declaration upon formal confirmation on 1 April
1998,
7 identifying the “[m]atters for which the Community has exclusive competence”, which are notably “the conservation and management of sea fishing
resources [. . .]. This competence applies to waters under national fisheries jurisdiction and to the high seas”. It is noteworthy that this Declaration has not been updated,
and today the formulation does not entirely correspond to the formulation of
the TFEU, as those competences have an “evolving nature”,
8 Although “in practice,
the declarations of competences are only very rarely completed or amended”,
9 the
evolution can be indirect or result from the implementation of the treaty, as the
repartition of competences is often voluntary left partly blurred.
10 Where the repartition of competences is not clear, Annex IX Article 6 states that the organization and
the member States concerned shall “provide this information” to any State party
which so request and, if they do not provide the relevant information within a
“reasonable time”, or if they provide contradictory information, this may lead to
“joint and several liability”.
11
However, it is sometimes difficult to distinguish between the shared competences
of the EU for fisheries or environment, and its exclusive competence for the
conservation of marine biological resources, as the two fields are closely linked
(see infra Sect. 2.2). This ambiguous repartition of competences, then, creates not
only a tension between the Organization and its member States, but also adds level of
5 Art. 4(2) of the UNCLOS states that “[a]n international organization shall be a Party to this
Convention to the extent that it has competence in accordance with the declarations, communications of information or notifications referred to in Art. 5 of this Annex.”
6 Heliskoski (2013), p. 190. See the ITLOS advisory opinion of 2 April 2015, Request for an
advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case n
21, §164.
7 Declaration concerning the competence of the European Community with regard to matters
governed by the United Nations Convention on the Law of the Sea of 10 December 1982 and the
Agreement of 28 July 1994 relating to the implementation of Part XI of the Convention (7 December
1984), available on the website of the Division of the United Nations for Oceans Affairs and the
Law of the Sea (DOALOS), available at http://www.un.org/Depts/los/convention_agreements/
convention_overview_convention.htm.
8 Heliskoski (2013), pp. 205–207.
9 Id. at p. 207.
10 Id. at p. 209. For the author, “the reasons beyond the Union’s reluctance to provide specific
declarations with updates relate to the fact that the defining of the scope and nature of the Union’s
competence runs counter to one of the fundamental characteristics (some would argue, virtues) of
mixed agreements; the technique enables questions of the scope and nature of Union’s competence
to be postponed and to be decided on a case by case basis in a contextual fashion.”
11 For the interpretation of the liability regime settled by Annex IX, see ITLOS advisory opinion of
2 April 2015, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case n
21, §§168 and followings.
20 The European Union and the Future International Legally Binding Instrument on. . .
381
5 Moreover, it is also
deemed “to address the question of the international responsibility of the Union and
its Member State under such ‘mixed agreements’.”
6 The European Community
submitted its Declaration of competence upon the signature of the UNCLOS on
7 December 1984, and made a Declaration upon formal confirmation on 1 April
1998,
7 identifying the “[m]atters for which the Community has exclusive competence”, which are notably “the conservation and management of sea fishing
resources [. . .]. This competence applies to waters under national fisheries jurisdiction and to the high seas”. It is noteworthy that this Declaration has not been updated,
and today the formulation does not entirely correspond to the formulation of
the TFEU, as those competences have an “evolving nature”,
8 Although “in practice,
the declarations of competences are only very rarely completed or amended”,
9 the
evolution can be indirect or result from the implementation of the treaty, as the
repartition of competences is often voluntary left partly blurred.
10 Where the repartition of competences is not clear, Annex IX Article 6 states that the organization and
the member States concerned shall “provide this information” to any State party
which so request and, if they do not provide the relevant information within a
“reasonable time”, or if they provide contradictory information, this may lead to
“joint and several liability”.
11
However, it is sometimes difficult to distinguish between the shared competences
of the EU for fisheries or environment, and its exclusive competence for the
conservation of marine biological resources, as the two fields are closely linked
(see infra Sect. 2.2). This ambiguous repartition of competences, then, creates not
only a tension between the Organization and its member States, but also adds level of
5 Art. 4(2) of the UNCLOS states that “[a]n international organization shall be a Party to this
Convention to the extent that it has competence in accordance with the declarations, communications of information or notifications referred to in Art. 5 of this Annex.”
6 Heliskoski (2013), p. 190. See the ITLOS advisory opinion of 2 April 2015, Request for an
advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case n
21, §164.
7 Declaration concerning the competence of the European Community with regard to matters
governed by the United Nations Convention on the Law of the Sea of 10 December 1982 and the
Agreement of 28 July 1994 relating to the implementation of Part XI of the Convention (7 December
1984), available on the website of the Division of the United Nations for Oceans Affairs and the
Law of the Sea (DOALOS), available at http://www.un.org/Depts/los/convention_agreements/
convention_overview_convention.htm.
8 Heliskoski (2013), pp. 205–207.
9 Id. at p. 207.
10 Id. at p. 209. For the author, “the reasons beyond the Union’s reluctance to provide specific
declarations with updates relate to the fact that the defining of the scope and nature of the Union’s
competence runs counter to one of the fundamental characteristics (some would argue, virtues) of
mixed agreements; the technique enables questions of the scope and nature of Union’s competence
to be postponed and to be decided on a case by case basis in a contextual fashion.”
11 For the interpretation of the liability regime settled by Annex IX, see ITLOS advisory opinion of
2 April 2015, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case n
21, §§168 and followings.
20 The European Union and the Future International Legally Binding Instrument on. . .
381