20. The European Union and the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction

Herein after ‘UNCLOS’ (10 December 1982, entered into force 16 November 1994) UNTS 1833 3. The EU signed the UNCLOS on December 7th 1984, and deposited its instrument of formal confirmation on April 1st 1998, in conformity with Art. 216 of the TFEU (Council Decision 98/392/EC). See for instance Churchill (2017), p. 32. About the role of the EU in the law of the sea, see notably Churchill (2018), pp. 290–323.

The term ‘biodiversity’ can be defined according to Art. 2 of the Convention on biological diversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”

Thanks to its exclusive competence regarding the conservation of marine biological resources, the EU is part of several regional fisheries organizations, as the North-East Fisheries Commission, or the International Commission for the Conservation of Atlantic Tuna. See Dross (2014).

See Art. 2 of Annex IX to the UNCLOS.

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.”

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.

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.

Heliskoski (2013), pp. 205–207.

Id. at p. 207.

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.”

The ‘Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction’ (here after the ‘BBNJ Working Group’) was introduced by Resolution 59/24 of the UNGA, adopted on 17 November 2004, indicating in its paragraph 73 that the BBNJ Working Group’s mandate was “to indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond national jurisdiction”. Indeed, according to Art. 22 of the UN Charter, the UNGA can create subsidiary bodies necessary to the accomplishment of its functions.

UNGA Resolution 66/231 (2011), Oceans and the Law of the Sea, Annex – Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, §(a). (see infra Sect. 3.1 for a detailed explanation).

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).

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)).

UNGA Resolution 72/249 (2017), §11.

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: “l’attribution des compétences à l’Union s’est faite de façon pragmatique, au fil de la révision des traités, sans vision systématique d’ensemble, ce qui induit un manque fragrant de lisibilité. Ceci a alimenté une crainte diffuse vis-à-vis d’un caractère de plus en plus envahissant de l’action de l’Union.”

Art. 191 deals with the Union policy on the environment.

Council Decision (EU) 2016/455 of 22 March 2016 established by the General Assembly resolution 69/292. See also, more generally, the document of the Council of the EU, EU Statements in multilateral organizations – General Arrangements, 2 October 2011, doc. 15901/11, and Flaesch-Mougin (2013), p. 571.

See the Proposition of decision from the Council of 4th of January 2018: https://​eur-lex.​europa.​eu/​legal-content/​en/​ALL/​?​uri=​CELEX%3A52017PC0812#document2. See also the document 6841/18 of the Council of the EU, 12 March 2018, §3.

According to the case ERTA, 22/70, CJEC, 31 March 1971, Commission v. Council, Rec 1971 p. 263. For a clarification of the theory of the external implicit competences of the EU, see Michel (2006), pp. 4–8. See also Michel (2003).

Document 6841/18 of the Council of the EU, 12 March 2018, §3.

Ibid.

In the context, for instance, of Brexit: the United Kingdom has quite often the most “extreme” position on certain issues, as the one of genetic resources or the principle of freedom of navigation or access to marine genetic resources.

De Baere (2013), p. 642.

See Council of the EU, EU Statements in multilateral organizations – General Arrangements, 2 October 2011, doc. 15901/11. See Flaesch-Mougin (2013), p. 571.

In another field, such difficulties have also explicitly emerged, as it is the case for the negotiations of the convention on mercury. De Baere (2012), pp. 640–655.

De Baere (2013), p. 648.

See on this issue and also on the substance of the advisory opinion, Oanta (2017), p. 48 and following.

High Court, 6 October 2015, Council of the European Union v European Commission, Case C-73/14. See also Morin (2015), p. 3.

Id. at §58: “However, it is clear from the case law of the Court that Art. 335 TFEU, although restricted to Member States on its wording, is the expression of a general principle that the European Union has legal capacity and is to be represented, to that end, by the Commission (see, to that effect, judgment in Reynolds Tobacco e.a./Commission, C-131/03 P, EU:C:2006:541, paragraph 94).”

Id. at §63 Art. 218(9) TFEU “means that the application of that provision concerns the positions to be adopted on behalf of the European Union in the context of its participation, through its institutions or, as the case may be, through its Member States acting jointly in its interests, in the adoption of such acts within the international body concerned. The European Union was invited to express, as a party, a position ‘before’ an international court, and not ‘in’ it”. For the Chamber Art. 218 is not applicable here: “by sending the written statement, on behalf of the European Union, to ITLOS in Case No. 21 without having submitted its contents to the Council for approval, the Commission did not infringe that provision” (§76).

Michel Morin stresses then the bad faith of member States: “en réalité, ce n’est pas le Conseil mais la Commission qui avait des motifs d’introduire un recours, non contre le Conseil puisque celui-ci n’a pas participé à l’instance devant le TIDM, mais contre tous les Etats membres qui ont adressé à ce tribunal des exposés écrits puisque ce sont eux qui ont violé le principe d’attribution des compétences au sein de l’UE.” Morin (2015), p. 4.

Adding: “In addition, even if the envisaged measure would possibly fall within the shared competence of the Union and the Member States (quod non), the Council failed to properly take into account that a general decision had already been taken by the Union, i.e. the Union acting alone, to support the establishment of marine protected areas, and that the envisaged measures may affect existing Union measures.”

Id. at §2.

Id. at §§108–109. See also §117: “[a]gainst this background, the Union must be considered not only to have had a competence in the field of environmental policy for all the measures to be discussed or decided in the CCAMLR, but also to have exercised that competence fully. The member States were therefore prevented, pursuant to the second sentence of Art. 2(2) TFEU, from exercising their own competences in respect of the same subjects, even only by acting alongside the Union in the CCAMLR”, and the conclusion §139. To decide, the advocate general relied on a “centre of gravity approach”, which means that the judge will have to balance and choose which competence, among the environmental, research, and fisheries fields of competences, is the “centre of gravity”, or the closest and principal objective of the decision, leading to the determination of its legal basis (Id. at §79). Under this approach, “the Antarctic marine protected areas to which the contested 2015 and 2016 decisions were dedicated did not, according to their centre of gravity, constitute fisheries policy measures with an environmental conscience, but environmental protection measures with—very serious—implications for fishing” (Id. at §97). Under this argumentation, the Commission would be unsuccessful in its claims. However, finally, the, advocate concluded that the Commission was competent to act on behalf of the EU on its own, even in the context of the exercise of a shared competence: “[t]here is a need for mixed action by the Union and its Member States on the international stage only where the Union itself does not have sufficient exclusive or shared competences to act alone in relation to third countries or in international bodies. Only if the Union does not have powers of its own is it absolutely necessary for the Member States to participate alongside the Union in international matters.”

Ribeiro (2017), pp. 65–86.

Annex to Resolution 66/231 of the UNGA.

IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n°179, 20 September 2018, available at http://​enb.​iisd.​org/​oceans/​bbnj/​igc1/​.

IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Earth Negotiation Bulletin, vol. 25, n°141, pp. 9–10. IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n°179, pp. 3–6.

See Arnaud-Haond (2018). For the author, it is indeed necessary to preserve the freedom and flexibility of marine scientific research, while trying to reach at the same time a more equitable regime, in order to foster the research and discoveries dealing with the conservation of marine biodiversity and environment.

During the meeting of September 2018, the question of the elaboration of a sui generis system, including a mandatory disclosure of origin, was discussed. The other option in this regard would be to leave the matter to another body such as the WTO or WIPO. See IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n°179, p. 6. See notably Chiarolla (2014), pp. 171–194.

Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 Article 27(3)(b): “Members may also exclude from patentability: (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” See also Voigt-Hanssen (2018), pp. 683–705.

Rochette et al. (2015).

IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, pp. 11–12 and IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, pp. 6–9. The EU, moreover, “suggested that: proposals include socio-economic mitigation measures; and management plans, as part of final decisions, include measures identified by competent international organizations and a communication strategy towards affected stakeholders”, showing one’s again its pragmatic approach. Oude Elferink (2018), pp. 437–466.

IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Id. at p. 13.

Ibid.

Id. at pp. 15–16.

Id. at p. 18. Resolution 42/279 recalls indeed that “the conference shall exhaust every effort in good faith to reach agreement on substantive matters by consensus”, stating the “need to ensure the widest possible and effective participation in the conference”. UNGA Res 72/249 (2017), §17. Some States, like Russia, are indeed not convinced yet of the necessity of such a legally binding instrument.

For a general study of the consequences of Brexit on the law of the sea, see Beslier (2016), pp. 15–24.

Definition available on the website of the Commission, maritime affairs: https://​ec.​europa.​eu/​maritimeaffairs/​policy_​en.

See, for instance, the Communication from the Commission to the Council and the European Parliament, of 2 October 2002, Toward a strategy to protect and conserve the marine environment [COM(2002) 539 final] and the Communication from the Commission to the Council and the European Parliament of 24 October 2005 Thematic Strategy on the Protection and Conservation of the Marine Environment {SEC(2005)1290}, COM/2005/0504 final, and, more directly, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 13 September 2012, Blue Growth opportunities for marine and maritime sustainable growth COM/2012/494 final according to which ‘The blue economy needs to be sustainable and to respect potential environmental concerns given the fragile nature of the marine environment’, p. 5, and the 2014/89/EU Directive of the European Parliament and of the Council establishing a framework for maritime spatial planning, Art. 5(1): “When establishing and implementing maritime spatial planning, Member States shall consider economic, social and environmental aspects to support sustainable development and growth in the maritime sector, applying an ecosystem-based approach, and to promote the coexistence of relevant activities and uses.”

Moreover, the Art. 2 states that “1. The CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term … 2. The CFP shall apply the precautionary approach to fisheries management, and shall aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the maximum sustainable yield. … 3. The CFP shall implement the ecosystem-based approach to fisheries management so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised, and shall endeavour to ensure that aquaculture and fisheries activities avoid the degradation of the marine environment. … 5. The CFP shall, in particular: … (j) be coherent with the Union environmental legislation …”.

Marine Strategy Framework Directive (MSFD), 2008/56/EC, §6. See on this policy Long (2017), pp. 662 and 665.

See Seddik (2017), p. 8 and 15. See also, the study of the Centre d’études stratégiques de la marine (2014) Union européenne: le défi maritime, Études marines n°7 available at: https://​cesm.​marine.​defense.​gouv.​fr/​index.​php/​publications/​etudes-marines/​94-etudes-marines-n-7-union-europeenne-le-defi-maritime.