and sustainable use of marine biodiversity beyond national jurisdiction, which
negotiation started in September 2018.
15
The legal basis for the EU to participate in the discussions related to the
conservation of marine biodiversity beyond national jurisdiction is exactly the
same as the terms for the Preparatory Committee for the development of a legally
binding instrument,
16 as set out in Resolution 72/249, wherein the UNGA decided
that “for the meetings of the conference, the participation rights of the international
organization that is a party to the Convention shall be as in the Meeting of States
Parties to the Convention.”
17 This latter resolution, which is quite recent, is entitled
“Participation of the European Union in the work of the United Nations”, and gives
the Union only a status of “observer”. The EU, then, as a Party to the UNCLOS in
addition to its status as observer to the United Nations, can by exception directly
participate to the discussions on marine biodiversity beyond national jurisdiction,
stressing its very particular and important role as regards the international law of the
sea. It should be stressed that this right to directly and fully participate in discussions
is a very important development compared to past practice. The EU's full and direct
participation right had indeed in the past been denied on several occasions, before
being enshrined in resolution 69/292. For example, the EU did not have such status
at the time of the negotiations of the 1995 Straddling Fish Stocks Agreement,
although the legal configuration was broadly the same. This is probably why
resolutions 69/292 and 72/249 add explicitly: “this provision shall constitute no
precedent for all meetings to which Assembly resolution 65/276 of 3 May 2011 is
applicable”, this situation remaining an exception.
The ambiguity affecting the substantive repartition of competences (exclusive or
shared) within the EU mentioned above might entail other difficulties regarding the
institutional repartition of competences between the Council, in the name of the EU
and its member States and the Commission, representing the EU itself, in the context
of the negotiation of the new international instrument. Indeed, although there is a
priori a clear repartition of the institutional competences between the Council and
the Commission, it is not that clear in practice.
18 On the one hand, according to
15 UNGA Resolution 72/249, paragraph 2, adopted on 24th December 2017 which convened, as a
result of the processes conducted by the Preparatory Committee, an intergovernmental conference
with the mandate of negotiating a future legally binding instrument under the basis of Resolution
69/292 and of the recommendations of the ‘PrepCom’. Payne (2017).
16 Resolution 69/292, according to which the UNGA decided that ‘the rules relating to the procedure
and the established practice of the committees of the General Assembly shall apply to the procedure
of the preparatory committee, and that, for the meetings of the preparatory committee, the participation rights of the international organization that is a party to the Convention shall be as in the
Meeting of States Parties to the Convention’, adding that ‘this provision shall constitute no
precedent for all meetings to which Assembly resolution 65/276 of 3 May 2011 is applicable’
(§1(j)).
17 UNGA Resolution 72/249 (2017), §11.
18 As Elie Jarmache notes, “on aurait pu penser la question des compétences résolue et bien établie
dans le système européen de prise de décision, et le rôle respectif des différents acteurs bien connu.
Force est de constater qu’il n’en est rien”. Jarmache (2014), p. 17. The author refers to M Dony:
20 The European Union and the Future International Legally Binding Instrument on. . .
383
negotiation started in September 2018.
15
The legal basis for the EU to participate in the discussions related to the
conservation of marine biodiversity beyond national jurisdiction is exactly the
same as the terms for the Preparatory Committee for the development of a legally
binding instrument,
16 as set out in Resolution 72/249, wherein the UNGA decided
that “for the meetings of the conference, the participation rights of the international
organization that is a party to the Convention shall be as in the Meeting of States
Parties to the Convention.”
17 This latter resolution, which is quite recent, is entitled
“Participation of the European Union in the work of the United Nations”, and gives
the Union only a status of “observer”. The EU, then, as a Party to the UNCLOS in
addition to its status as observer to the United Nations, can by exception directly
participate to the discussions on marine biodiversity beyond national jurisdiction,
stressing its very particular and important role as regards the international law of the
sea. It should be stressed that this right to directly and fully participate in discussions
is a very important development compared to past practice. The EU's full and direct
participation right had indeed in the past been denied on several occasions, before
being enshrined in resolution 69/292. For example, the EU did not have such status
at the time of the negotiations of the 1995 Straddling Fish Stocks Agreement,
although the legal configuration was broadly the same. This is probably why
resolutions 69/292 and 72/249 add explicitly: “this provision shall constitute no
precedent for all meetings to which Assembly resolution 65/276 of 3 May 2011 is
applicable”, this situation remaining an exception.
The ambiguity affecting the substantive repartition of competences (exclusive or
shared) within the EU mentioned above might entail other difficulties regarding the
institutional repartition of competences between the Council, in the name of the EU
and its member States and the Commission, representing the EU itself, in the context
of the negotiation of the new international instrument. Indeed, although there is a
priori a clear repartition of the institutional competences between the Council and
the Commission, it is not that clear in practice.
18 On the one hand, according to
15 UNGA Resolution 72/249, paragraph 2, adopted on 24th December 2017 which convened, as a
result of the processes conducted by the Preparatory Committee, an intergovernmental conference
with the mandate of negotiating a future legally binding instrument under the basis of Resolution
69/292 and of the recommendations of the ‘PrepCom’. Payne (2017).
16 Resolution 69/292, according to which the UNGA decided that ‘the rules relating to the procedure
and the established practice of the committees of the General Assembly shall apply to the procedure
of the preparatory committee, and that, for the meetings of the preparatory committee, the participation rights of the international organization that is a party to the Convention shall be as in the
Meeting of States Parties to the Convention’, adding that ‘this provision shall constitute no
precedent for all meetings to which Assembly resolution 65/276 of 3 May 2011 is applicable’
(§1(j)).
17 UNGA Resolution 72/249 (2017), §11.
18 As Elie Jarmache notes, “on aurait pu penser la question des compétences résolue et bien établie
dans le système européen de prise de décision, et le rôle respectif des différents acteurs bien connu.
Force est de constater qu’il n’en est rien”. Jarmache (2014), p. 17. The author refers to M Dony:
20 The European Union and the Future International Legally Binding Instrument on. . .
383