2 The EU and the UNCLOS and the Enhanced Status
of the EU in the UNGA
It is useful to recall that in the Third United Nations Conference on the Law of Sea
(1973–1982) the European Economic Community (EEC) was not a party of the
negotiation of the Convention, but it was given an observer status in 1974.
11
Although the EEC did not represent the only IO to have assumed an observer status
during the Third Conference, it became immediately apparent from the outset that its
status showed a certain peculiarity. In fact, this is mainly due to the allocation of
exclusive and shared competences, based on which its Member States could no
longer act in a completely independent way.
In the specific case under scrutiny, in order to guarantee the EU’s participation in
UNCLOS, the inclusion of the “EEC clause” was an essential achievement,
12
binding the Member States to the Convention in accordance with the principle of
the conferral of powers.
This clause is now contained in Art. 305, par. 1, let. f), of UNCLOS and Annex
IX to the Convention, which states that: “the Convention shall be open for signature
by [. . .] international organizations.”
13 Its conditions, set out in Annex IX, are
sufficiently detailed and tailor-made for the EU.
The application practice has shown that these types of clauses are today identified
as “Regional Economic Integration Organization” (REIO) or “Regional Integration
Organization” (RIO) clauses.
14 The key element is based on the conferral of powers
from the States parties to the IO. Art. 306 of UNCLOS and Art. 3 of the Annex IX
provide that the IO can deposit its instrument of ratification if most of its States
parties have deposited their acceptance instruments.
15 It is envisaged that the
instrument deposited by the organization contains certain statements regarding the
extent of its participation, its rights and obligations and its powers in compliance
with Art. 5 of the Annex IX. In fact, the latter provides that the acceptance instrument
of the organization contains a declaration, specifying the matters governed by the
Convention for which the competence has been transferred to the organization by its
member States which are parties to the Convention.
In the specific case, the EU’s declaration of competence
16 contains a description
of the competences involved, the exclusive ones of the EU (e.g. conservation and
11 For a full discussion on the EEC’s participation to the Third Conference, cf., inter alia, Treves
(1976), p. 455; Gaja (1980–1981), p. 278; Simmonds (1989), p. 9; Treves (2002), p. 279.
12 Cf., Paasivirta (2015), p. 1045.
13 According to Art. 1, Annex IX of UNCLOS, the IOs are defined as “intergovernmental organization[s] . . . to which its member States have transferred competence over matters governed by this
Convention”.
14 On the REIO/RIO clauses, see Emerson et al. (2011), p. 31.
15 On the declaration of competence of Member States, see http://www.un.org/depts/los/conven
tion_agreements/convention_declarations.htm.
16 On the EU’s declaration of competence, see http://ec.europa.eu/world/agreements/
viewCollection.do?fileID¼76198, p. 15. See also Lijnzaad (2014), p. 186.
404
L. Riccardi
of the EU in the UNGA
It is useful to recall that in the Third United Nations Conference on the Law of Sea
(1973–1982) the European Economic Community (EEC) was not a party of the
negotiation of the Convention, but it was given an observer status in 1974.
11
Although the EEC did not represent the only IO to have assumed an observer status
during the Third Conference, it became immediately apparent from the outset that its
status showed a certain peculiarity. In fact, this is mainly due to the allocation of
exclusive and shared competences, based on which its Member States could no
longer act in a completely independent way.
In the specific case under scrutiny, in order to guarantee the EU’s participation in
UNCLOS, the inclusion of the “EEC clause” was an essential achievement,
12
binding the Member States to the Convention in accordance with the principle of
the conferral of powers.
This clause is now contained in Art. 305, par. 1, let. f), of UNCLOS and Annex
IX to the Convention, which states that: “the Convention shall be open for signature
by [. . .] international organizations.”
13 Its conditions, set out in Annex IX, are
sufficiently detailed and tailor-made for the EU.
The application practice has shown that these types of clauses are today identified
as “Regional Economic Integration Organization” (REIO) or “Regional Integration
Organization” (RIO) clauses.
14 The key element is based on the conferral of powers
from the States parties to the IO. Art. 306 of UNCLOS and Art. 3 of the Annex IX
provide that the IO can deposit its instrument of ratification if most of its States
parties have deposited their acceptance instruments.
15 It is envisaged that the
instrument deposited by the organization contains certain statements regarding the
extent of its participation, its rights and obligations and its powers in compliance
with Art. 5 of the Annex IX. In fact, the latter provides that the acceptance instrument
of the organization contains a declaration, specifying the matters governed by the
Convention for which the competence has been transferred to the organization by its
member States which are parties to the Convention.
In the specific case, the EU’s declaration of competence
16 contains a description
of the competences involved, the exclusive ones of the EU (e.g. conservation and
11 For a full discussion on the EEC’s participation to the Third Conference, cf., inter alia, Treves
(1976), p. 455; Gaja (1980–1981), p. 278; Simmonds (1989), p. 9; Treves (2002), p. 279.
12 Cf., Paasivirta (2015), p. 1045.
13 According to Art. 1, Annex IX of UNCLOS, the IOs are defined as “intergovernmental organization[s] . . . to which its member States have transferred competence over matters governed by this
Convention”.
14 On the REIO/RIO clauses, see Emerson et al. (2011), p. 31.
15 On the declaration of competence of Member States, see http://www.un.org/depts/los/conven
tion_agreements/convention_declarations.htm.
16 On the EU’s declaration of competence, see http://ec.europa.eu/world/agreements/
viewCollection.do?fileID¼76198, p. 15. See also Lijnzaad (2014), p. 186.
404
L. Riccardi