management of resources and fishing habits) and the shared ones between the Union
and its Member States (e.g. maritime transport, sea safety and prevention of maritime
pollution). The EU declaration of competence states that the competences are subject
to “continuous development” and, therefore, the declaration may be completed or
amended. However, no such formal amendments have been made or requested
so far.
Therefore, the implementation of UNCLOS is carried out both by the EU and/or
its Member States within their respective competences. On the one hand, they
undertake to inform the others which among them is competent in a relevant subject
matter. In fact, if this does not work, they run the risk of becoming jointly responsible vis-à-vis third parties for any breaches of the Convention obligations.
17 On the
other hand, it is of paramount importance that the EU and its Member States act in a
uniform manner, maintaining the unity of the EU. However, the joint action needs a
regular coordination process which is mainly carried out in the EU’s headquarter
(Brussels) by the competent EU Institutions (the European Commission, the President of the European Council and the Presidency of the Council of the European
Union) and Institutional bodies (Delegations of the EU).
In the specific framework of the UNCLOS, the representative institution is the
European Commission, according Art. 218 TFUE. However, after the entry into
force of the Lisbon treaty, the external representation of EU is also carried out by the
Delegations of the EU, which operate under the High Representative for Foreign
Affairs and Security Policy (HR), according Art. 221, par. 2, TFUE,
18 which
effectively participate in the related international fora, such as the Meeting of the
States Parties. The coordination process is guided by the EU law principle of sincere
cooperation, according Art. 4, par. 3 of TEU.
Furthermore, many contentious issues concerning the interpretation and implementation of the UNCLOS have been examined at a technical level within the
European Institutions by the Common Foreign and Security Policy Working Party
on the Law of the Sea (COMAR). The remit of COMAR is extensive and was
originally set out in the Council Decision of 1998 on the EC’s approval of the
UNCLOS and the Agreement on Part XI. The remit includes, for example, the
provision on the compatibility of the EU policies and regulatory measures with the
UNCLOS and with the international law in general; the preparation of Council
decisions and declarations relating to the UNCLOS; the coordination of the activities
of the EU and Member States in the International Seabed Authority and its constituent organs and consultations with the Member States and the drafting of common
positions on the development of the Law of the Sea and its repercussions on EU
17 International Tribunal for the Law of the Sea (ITLOS), Advisory Opinion submitted by the
Sub-Regional Fisheries Commission, 2 April 2015. Available via https://www.itlos.org/cases/listof-cases/case-no-21/?%27%C2%B4%270x27%3B¼&
cHash¼1783fc2076452fc251e46c4da8e441ce.
18 On the external representation of the EU after the Lisbon Treaty, see Marquardt (2017), p. 3.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
405
and its Member States (e.g. maritime transport, sea safety and prevention of maritime
pollution). The EU declaration of competence states that the competences are subject
to “continuous development” and, therefore, the declaration may be completed or
amended. However, no such formal amendments have been made or requested
so far.
Therefore, the implementation of UNCLOS is carried out both by the EU and/or
its Member States within their respective competences. On the one hand, they
undertake to inform the others which among them is competent in a relevant subject
matter. In fact, if this does not work, they run the risk of becoming jointly responsible vis-à-vis third parties for any breaches of the Convention obligations.
17 On the
other hand, it is of paramount importance that the EU and its Member States act in a
uniform manner, maintaining the unity of the EU. However, the joint action needs a
regular coordination process which is mainly carried out in the EU’s headquarter
(Brussels) by the competent EU Institutions (the European Commission, the President of the European Council and the Presidency of the Council of the European
Union) and Institutional bodies (Delegations of the EU).
In the specific framework of the UNCLOS, the representative institution is the
European Commission, according Art. 218 TFUE. However, after the entry into
force of the Lisbon treaty, the external representation of EU is also carried out by the
Delegations of the EU, which operate under the High Representative for Foreign
Affairs and Security Policy (HR), according Art. 221, par. 2, TFUE,
18 which
effectively participate in the related international fora, such as the Meeting of the
States Parties. The coordination process is guided by the EU law principle of sincere
cooperation, according Art. 4, par. 3 of TEU.
Furthermore, many contentious issues concerning the interpretation and implementation of the UNCLOS have been examined at a technical level within the
European Institutions by the Common Foreign and Security Policy Working Party
on the Law of the Sea (COMAR). The remit of COMAR is extensive and was
originally set out in the Council Decision of 1998 on the EC’s approval of the
UNCLOS and the Agreement on Part XI. The remit includes, for example, the
provision on the compatibility of the EU policies and regulatory measures with the
UNCLOS and with the international law in general; the preparation of Council
decisions and declarations relating to the UNCLOS; the coordination of the activities
of the EU and Member States in the International Seabed Authority and its constituent organs and consultations with the Member States and the drafting of common
positions on the development of the Law of the Sea and its repercussions on EU
17 International Tribunal for the Law of the Sea (ITLOS), Advisory Opinion submitted by the
Sub-Regional Fisheries Commission, 2 April 2015. Available via https://www.itlos.org/cases/listof-cases/case-no-21/?%27%C2%B4%270x27%3B¼&
cHash¼1783fc2076452fc251e46c4da8e441ce.
18 On the external representation of the EU after the Lisbon Treaty, see Marquardt (2017), p. 3.
21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National. . .
405