THE EU AND THE ANTARCTIC: STRANGE BEDFELLOWS?

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1 Working Paper No. 169 February 2016 THE EU AND THE ANTARCTIC: STRANGE BEDFELLOWS? Nils Vanstappen and Jan Wouters 1

2 THE EU AND THE ANTARCTIC: STRANGE BEDFELLOWS? Abstract Nils Vanstappen and Jan Wouters Over the last decades, the European Union (EU) has become an established actor on the global scene. Its external competences have invariably expanded and the institutional machinery needed for exercising these competences has become more elaborate. Nevertheless, the EU s engagement in Antarctic governance has remained limited, as the Antarctic region has been low on the Union s list of political priorities. In this paper, we identify the Union s main policies towards the Antarctic as well as its capacities, agencies, and processes. After providing some legal background on the EU s role in global governance, we explain the legal and factual bases for possible involvement in Antarctic governance. Despite being legally able to occupy a more prominent role within the Antarctic Treaty System, political motives have prevented the EU from fulfilling this role. Therefore, in our concluding remarks, we offer some thoughts on possible incentives, which could lead the Union to become more committed towards the Antarctic. Keywords European Union (EU), EU external relations, public international law, international organizations, Antarctic Treaty System (ATS), Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) Authors Nils Vanstappen is a doctoral researcher and junior member at the Leuven Centre for Global Governance Studies and the Institute for International Law, KU Leuven. Prof. Dr. Jan Wouters is Jean Monnet Chair ad personam EU and Global Governance, Full Professor of International Law and International Organizations and Director of the Leuven Centre for Global Governance Studies and the Institute for International Law, KU Leuven. Address for correspondence nils.vanstappen@ggs.kuleuven.be jan.wouters@ggs.kuleuven.be 2016 by Nils Vanstappen and Jan Wouters. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review. 2

3 THE EU AND THE ANTARCTIC: STRANGE BEDFELLOWS? Nils Vanstappen and Jan Wouters Table of contents 1. Introduction The EU as a principled global actor The Antarctic connection The European Union s (lack of) engagement in Antarctic governance A general lack of engagement CCAMLR and the EU s common fisheries policy European research in Antarctica Prospects for the European Union in the Antarctic: some reflections References Introduction Initially designed for economic integration, the European Union (EU or Union) has developed more and more into a full-fledged political project over the past two decades. In addition to acquiring new internal competences in the social, cultural and political spheres, the EU has also been granted increasing external powers to defend the Union s interests and promote its values in the world. 1 For instance, the Union now has an exclusive competence to negotiate and conclude trade and investment agreements, such as the Transatlantic Trade and Investment Partnership (TTIP) 2 or treaties regarding marine biodiversity conservation. It shares external competences with its Member States with regard to the environment, 3 social policy, 4 transport, 5 and several other domains. As a consequence, the EU has become an ever more prominent actor at the global level. 6 It has inter alia become engaged in matters pertaining to the Antarctic region, 7 particularly in its established capacity of Contracting Party (as the then European Economic Community, EEC) to the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). 8 1 The main source for these competences are the two basic treaties: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). See Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, [2010] OJ C83, [2012] OJ C For more information, see 3 See below A general lack of engagement. 4 The EU actively participates in meetings of the International Labour Organization (ILO). See 5 Consider, for example, the EU s participation in the International Maritime Organization. 6 See inter alia Van Vooren, Blockmans and Wouters 2013a. 7 In the spirit of the present handbook, the Antarctic region will be defined as the political area covered by the 1959 Antarctic Treaty, Seals Convention and Madrid Protocol (i.e. south of 60 degrees) as well as the area covered by the CCAMLR Convention. See Antarctic Treaty (1 December 1959, 402 UNTS 71); Convention on the Conservation of Antarctic Seals (1 June 1972, 1080 UNTS 175 (Seals Convention)); Convention on the Conservation of Antarctic Marine Living Resources (20 May 1980, 1329 UNTS 48 (CCAMLR)); and Protocol on Environmental Protection to the Antarctic Treaty (4 October 1991, 30 ILM 1455 (Madrid Protocol). 8 See previous note. 3

4 The aim of the present chapter is to examine the role the EU plays in the current governance system for the Antarctic region. We will identify the Union s policies towards the Antarctic as well as its capacities, agencies, and processes. The scope of this chapter is, however, limited. EU competences and policies cover a vast array of subject-matters, several of which may in some way or another be relevant for Antarctic governance. Accordingly, various internal EU rules might impact upon Antarctic issues. Consider, for example, the Union s rules on the liability of carriers of passengers, which could have an effect on Antarctic tourism, 9 or the possible impact of the EU s rules on maritime safety. 10 In addition, the Union s actions and statements, as presented by its international representatives, in non-antarctic Treaty System (ATS) fora, such as the International Whaling Commission (IWC) 11 or the International Maritime Organization (IMO) 12, might equally affect Antarctic governance. 13 However, given the space that is available, this chapter will be limited to the EU s direct rather than indirect or even hypothetical influence on Antarctic issues, i.e., its positions adopted within the framework of the ATS and its policies aimed specifically at the Antarctic region. After a short description of the Union s status as a global actor, the chapter will elaborate briefly on the reasons for EU involvement in Antarctic governance. Subsequently, the discussion will turn to the Union s current engagement in Antarctic governance, both in general and in more specific cases (in the fields of fisheries management and research). To conclude, we will attempt to highlight some probable and possible future evolutions of the EU s policy towards and involvement in the Antarctic region. 2. The EU as a principled global actor In the Laeken Declaration of December 2001, the European Council, responsible for setting the general policy direction and priorities of the EU, 14 reflected on the role the EU should play in global affairs: Does Europe not, now that is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilizing role worldwide and to point the way ahead for many countries and peoples? The European Council answered the question in the affirmative: Europe needs to shoulder its responsibilities in the governance of globalisation. 15 These and other statements reflect the Union s aspirations to acquire an independent (from its Member States) and leading role as a global actor. 16 As a result of these aspirations, the EU has received important tools to act as a global actor, both in terms of competences and institutionally. EU primary law affirms the international legal personality of the EU. 17 It equally recognises that the Union enjoys the capacity to both negotiate international agreements and participate in multilateral fora in cases where it can 9 See Regulation (EC) 392/2009 of the European Parliament and of the Council on the liability of carriers of passengers by sea in the event of accidents [2009] OJ L131/24. This regulation applies to any international carriage [ ] where: (a) the ship is flying the flag or is registered in a Member State; (b) the contract of carriage has been made in a Member State. (Article 2). 10 See, for example, statement made by the EU s representation at the 2014 CCAMLR meeting: Commission for the Conservation of Antarctic Marine Living Resources 2014, [3.46]. See also Ringbom The EU has observer status in the IWC. According to the International Fund for Animal Welfare (IFAW), the EU and the EU Presidency played a key role in ensuring the ICJ ruling [on Japanese whaling in the Antarctic] was acknowledged and integrated into the work of the IWC. See IFAW Although the European Commission has been a longstanding observer in the IMO, the EU itself has not (yet) acquired observer status in the IMO. See Nengye and Maes On the EU s role in international maritime organisations, see Wouters, de Jong, Marx and De Man TEU, Art. 15(1). 15 European Council See European Council 2010; Juncker 2014; and European Parliament TEU, Art 47. 4

5 rely on substantive competences. 18 In addition, the EU has a sophisticated machinery at its disposal for its external relations. While the European Commission still represents the EU in most external action fields, 19 one major innovation of the Lisbon Treaty in force since 1 December 2009 has been the function of the High Representative of the Union for Foreign Affairs and Security Policy (HR), supported by the European External Action Service (EEAS). 20 The HR s functions include not only external representation of the EU with regard to the Union s common foreign and security policy, 21 but equally ensuring consistency of the EU s external actions. 22 Vital parts of the EEAS are the Union Delegations, which represent the EU in third countries and at international organisations. 23 In all, these permanent actors have provided the EU with strong anchoring points to engage in external relations. 24 Throughout its external relations, the EU has explicitly adopted the image of a value-based international actor. 25 The EU s mission statement for its action in global governance has been laid down in the TEU, specifically in Articles 3(5) and 21. These articles stipulate some substantive objectives for EU external relations, such as the external promotion of its fundamental values (rule of law, human rights, democracy, etc.), the preservation and improvement of the quality of the environment, and the sustainable management of global natural resources. 26 The last is especially relevant when considering the Antarctic. These provisions also set out the methodology for the promotion of these goals, which consists of multilateral cooperation, especially within the framework of the UN, 27 and the strict observance and development of international law. 28 Despite its clear mandate to act globally, recognition of the EU as an autonomous actor separate from its Member States by third parties has at times proven difficult. Take, for example, the great difficulties encountered by the EU when it attempted to upgrade its observer status in the UN General Assembly. This attempt met with heavy resistance from various other UN Member States. 29 Indeed, third states often fear that allowing the EU a spot at the table alongside its own Member States would grant the EU (and its Member States) an uneven advantage. Nevertheless, the EU has managed to play an influential role in global governance, including in global environmental governance. 30 It has, for example, played a prominent role in setting up the international climate change regime. 31 Furthermore, it has recently stepped up its efforts to influence Arctic governance, especially with regard to the central Arctic Ocean. 32 Nevertheless and somewhat surprisingly given its broad aspirations, particularly with regard to environmental governance the EU has played only a minor role in the governance of Antarctica, as we will discuss below. 18 TFEU, Art See generally Kuijper, Wouters, Hoffmeister, De Baere and Ramopoulos TEU, Art 17(1). 20 TEU, Art TEU, Art 15(6) and 27(2). 22 TEU, Art. 18(4). 23 TFEU, Art. 221(1). 24 An additional permanent actor created by the Lisbon Treaty is the President of the European Council: see TEU, Art. 15(6) in fine. 25 Van Vooren, Blockmans and Wouters 2013b, TEU, Art 21.2(f). 27 TEU, Art 21.1, last sentence. 28 TEU, Art 3(5). On the role of these principles in EU external relations, see inter alia Larik See Wouters, Odermatt and Ramopoulos Vogler and Stephan Oberthür See, for example, Council of the European Union Information on the EU Arctic strategy is available on the website of the European External Action Service at 5

6 3. The Antarctic connection Some would wonder why the EU should be engaged in the governance of Antarctica at all. As (most of) its territory is situated in the northern hemisphere, at least from a geographical point of view, the EU s involvement is indeed not self-evident. Nevertheless, the EU could seek to participate in Antarctic governance to reinforce its claim to global environmental leadership. However, there are also other reasons for EU involvement in the Antarctic, which merit brief attention, namely, the activities of its Member States nationals which are de jure also EU citizens 33 and of its Member States themselves. Although the EU is not and cannot become a contracting party to most ATS instruments, 34 with the exception of CCAMLR, twelve EU Member States currently enjoy Consultative Party status under the Antarctic Treaty, while eight others are non-consultative Treaty Parties. 35 In other words, 20 out of the 28 EU Member States are a party to the Antarctic Treaty. Two EU Member States, France and the United Kingdom, retain sovereignty claims in the Antarctic region. 36 In addition, Belgium was both one of the twelve original signatories of the Antarctic Treaty and one of the founding fathers of the European Coal and Steel Community, the EU s earliest predecessor. As noted in the paragraph above, France and the United Kingdom still retain sovereignty claims to the Antarctic continent, designated respectively Terre Adélie and the British Antarctic Territory, in addition to sovereignty claims to some sub-antarctic islands. 37 Under national French and British law, these territories are considered autonomous entities, 38 and from the point of view of EU law, these territories are considered overseas territories, which means they are not governed by the EU acquis. 39 Instead, the TFEU sets out a framework for adopting association agreements with these overseas countries and territories, 40 which has not yet resulted in actual devotion of EU funds to the development of these territories or the adoption of association agreements with regard to the Antarctic territories specifically. An important effect of the exclusion of these territories from the EU acquis is that these claims serve as legal basis for independent action in the Antarctic by the respective claimant states. As such, France and the United Kingdom can circumvent the EU s exclusive competence with regard 33 TFEU, Art Both the Antarctic Treaty and the Seals Convention are open to accession solely by States, thus excluding international organisations from becoming full members (Article XIII Antarctic Treaty and Article 12 Seals Convention), furthermore, only Parties to the Antarctic Treaty can accede to the Madrid Protocol (Art 22.2 Madrid Protocol). 35 The 12 EU Member States with Consultative Party status are Belgium, Bulgaria, the Czech Republic, Finland, France, Germany, Italy, the Netherlands, Poland, Spain, Sweden, and the United Kingdom. The 8 EU members with non-consultative status are Austria, Denmark, Estonia, Greece, Hungary, Portugal, Romania, and the Slovak Republic. Monaco, which entertains a special relationship with the EU (e.g. their currency is the Euro), is also a non-consultative member. See 36 Another European country, Norway, also holds a sovereignty claim in Antarctica. Norway is not a Member State of the EU. However, it is a Member of the European Economic Area (EEA), which participates in the European internal market. See, in general, Fenger, Rydelski and van Stiphout The term sub-antarctic refers to the geographical area North of, but in close proximity to, 60 Southern Latitude. As such, these islands do not fall within the territorial scope of the Antarctic Treaty and the Madrid Protocol, but do fall within CCAMLR s territorial scope. Sovereignty claims over these islands are generally recognised, in contrast to sovereignty claims over territory below 60 Southern Latitude. For France, these are Kerguelen and Crozet Islands, while for the United Kingdom, these are the South Georgia and South Sandwich Islands. Argentina contests British sovereignty over these islands. 38 The French Antarctic territories, les terres australes et antarctiques françaises (TAAF), are a territoire d'outremer (see while the British Antarctic Territory (BAT) is a UK Overseas Territory and is administered in London by the Polar Regions Department of the Foreign and Commonwealth Office (see 39 See TFEU, Art and Annex II. The explicit mention of Terre Adélie and the British Antarctic Territory in Annex II to the TFEU raises the interesting question to what extent this can be considered a recognition of these claims. Unfortunately, this chapter does not provide the right opportunity for tackling this question. 40 This framework is further elaborated through Council Decision 2013/755/EU. 6

7 to marine biological resources conservation (see below). Furthermore, it is noteworthy that the EU has never invoked the Antarctic claims of its Member States to advance a greater role for itself in Antarctic governance, although it constantly stresses Denmark s and Finland s Arctic territories in the Arctic context. This could be explained by the opposition to any such move by other, non-claimant, EU Member States, which do not recognise the French or British claims. Let us then turn to the manifold activities exercised by EU Member States and their citizens in the Antarctic region, several of which fall under EU competences as we will demonstrate below. Some figures with regard to the three most important activities in the Antarctic region (scientific research, fisheries, and tourism) might serve to give a clearer picture. Although the EU itself does not operate a research station in Antarctica, of the 82 research stations in the Antarctic are operated by EU Member States. 42 Three of these are jointly operated: Law- Racovita station by Australia and Romania, Concordia station by France and Italy, and (Dirck Gerritsz Laboratory in) Rothera station by the Netherlands and the UK. Furthermore, the EU funded several research projects on the polar regions in general and Antarctica in particular. Regarding fishing interests, for the fishing season running from 1 December 2014 until 30 November 2015, three EU member states granted fishing licenses to four different fishing vessels. 43 In terms of catch allowance, EU Member States caught 169,879 tonnes of fish from constituting approximately 9.5% of the total catch quota during this period. 44 Finally, where it comes to tourism, 9,886 tourists from EU Member States have visited Antarctica in the period on a total of 36,686 tourists. 45 Comparatively, 12,308 tourists came from the United States and 4,087 tourists from Australia in the same period. In addition, out of 49 tourist vessels operating in the Antarctic in the season, 16 were registered in EU Member States and 18 were operated (wholly or partially) out of EU Member States according to statistics provided by the International Association of Antarctic Tour Operators (IAATO) On the possibility of an EU station as the first truly international station in Antarctica, see Hemmings Figures on the existing Antarctic research facilities, dating from 13 February 2014, are available in excel-format at the website of Council of Managers of National Antarctic Programs (COMNAP) at A map of European research stations in the Antarctic is available at 43 See 44 Numbers aggregated on the basis of the CCAMLR Statistical Bulletin, Vol. 25, available at No data were yet available for catches beyond the fishing season of See 46 IAATO

8 4. The European Union s (lack of) engagement in Antarctic governance 4.1 A general lack of engagement Both the EU s aspirations to a global (environmental) leadership role and its connection to the Antarctic through the activities of its Member States and citizens provide a political and economic basis for EU involvement in Antarctic governance. However, at the moment, the EU remains essentially an international organisation, albeit a very special and advanced one, that cannot exercise powers internal or external beyond those delegated to it by its Member States. This limitation is captured by the principle of conferral, enshrined in Articles 4 and 5 TEU, which stipulate, respectively, competences not conferred upon the Union in the Treaties remain with the Member States and the limits of Union competences are governed by the principle of conferral. 47 As such, legal competences matter, 48 and this chapter takes these legal competences as a starting point for the rest of the discussion. The most obvious legal basis for the EU s contribution to Antarctic governance and its participation in the ATS would be its competence with regard to environmental protection. 49 Indeed, protection of the environment is an objective shared by the EU and the ATS. On the side of the ATS, the environmental protection objective has been most clearly expressed in the Madrid Protocol, 50 although environmental concerns have formed part of Antarctic discourses and politics for much longer. On the European side, the basic treaties confirm the Union s dedication to the sustainable development of the Earth 51 and anticipate the translation of this dedication into measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. 52 In accordance with these objectives, and specifically with regard to the field of environmental protection, the Union has been granted the competence to cooperate with third countries and with the competent international organisations, which can result in international agreements but shall be without prejudice to Member States competence to negotiate in international bodies and to conclude international agreements. 53 In other words, and as signalled in Article 4(2)(e) TFEU, the EU and its Member States exercise a shared competence with regard to environmental protection, which means that the Member States competence is limited to the extent the Union has not exercised its competence, and until the Union has decided to cease exercising its competence. 54 As the exact division of competences between Member States and the EU is difficult to make in external environmental matters, they have generally opted for the practice of mixed agreements and mixed representation when dealing with this field, which means that the EU and its Member States are both present in their own right in the relevant fora. Through this practice, the Union can participate in most if not all international 47 See more in particular Art 5(1) and (2) and Art 4(1) TEU. 48 Wessel 2011, Other competences might, however, also serve as legal bases. Indeed, during the period when the Convention on the Regulation of Antarctic Mineral Resource Activities was being negotiated and Antarctica was at the centre of the global debate, the then European Community s claims to participation in the ATS were equally based on its competence regarding the common commercial policy. This is demonstrated in a resolution by the European Parliament of 1987, which considers it necessary that the Commission should be allowed to take part in the minerals regime negotiations as an observer and would welcome the Community s accession to this arrangement as well, particularly in view of the Community s legal responsibilities in the area of international trade. See European Parliament As captured in the first words of the Preamble: Convinced of the need to enhance the protection of the Antarctic environment and dependent and associated ecosystems. 51 TEU, Art 3(5). 52 TFEU, Art 191(1). 53 TFEU, Art. 191(4). 54 TFEU, Art. 2(2). 8

9 environmental organisations and forums. Consequently, there is little doubt that from an EUlaw standpoint participation of the EU in the Antarctic Treaty Consultative Meetings (ATCMs) or the Commission on Environmental Protection (CEP) is possible. On the other side of the spectrum, although the Antarctic Treaty and its Madrid Protocol currently do not allow for the accession of international organisations, several organisations and States have been allowed to participate in ATCMs and the CEP as observers 55 or experts, 56 and the EU could certainly participate under the latter category, or, alternatively, attempt to obtain separate treatment of some kind, such as an enhanced observer status. 57 Even if formal participation in ATS bodies were impossible, the EU could still exercise its environmental competence with regard to Antarctica through its Member States. 58 Indeed, the European Court of Justice (CJEU) has confirmed at several occasions that the fact that the [Union] is not a member of an international organization does not prevent its external competence from being in fact exercised, in particular through the Member States acting jointly in the [Union] s interest. 59 In such cases, Union positions are adopted, which determine how the Member States should negotiate. Yet, notwithstanding its aspirations to leadership in global environmental governance, the EU has in fact engaged only (very) limitedly in Antarctic governance. Apart from its membership in the CCAMLR bodies, the Union has only formally participated four times in ATS proceedings. Namely, it participated in the four special ATCMs organised to negotiate the Madrid Protocol in the early 1990s, which marked a pivotal moment in the history of Antarctic governance, 60 and where a single representative of the European Commission was present. Furthermore, there was some EU involvement in the negotiation of the Liability Annex to the Madrid Protocol, as the question arose who was competent to bring an action in the framework of this Annex, the EU or its Member States. This occasion provided an example of the EU being represented through its Member States. When the internal discussion on who could bring an action was finally decided, the Netherlands, on behalf of the Parties that were also members of the European Union, made a statement confirming the understanding that only a State Party might bring an action. 61 Afterwards, the EU has shown little enthusiasm to further engage in Antarctic governance: it has neither attempted to participate in other ATS meetings, nor adopted any Union positions with regard to specific Antarctic matters. Accordingly, the EU seems to follow the global tide of interest in the Antarctic, as exemplified by the European Parliament s high interest in the Antarctica in the course of the 1980s and at the start of the 1990s when the Question on Antarctica was a hot topic on the UN General Assembly s agenda The status of observer is reserved for a select group of organisations, namely the CCAMLR Commission, COMNAP, and SCAR. See ATCM Rules of Procedure, Rule See ATCM Rules of Procedure, Rules These concern the participation of experts of international organizations having a scientific or technical interest in Antarctica. 57 The EU has obtained enhanced observer/full participant status in several international organisations. See, in general, Hoffmeister and Kuijper Since 3 May 2011, the EU has also obtained (limited) enhanced observer status in the UN General Assembly. See UNGA Res 65/276 (3 May 2011) UN Doc A/RES/65/ In principle, it would equally be possible for an EU representative to be present in the delegation of one of the Member States. However, to our knowledge, this has not happened yet. 59 Judgment in Commission v Greece, C-45/07, EU:C:2009:81, paragraph 31 with reference to Opinion in Convention No 170 of the International Labour Organization, 2/91, EU:C:1993:106, paragraph 5. See also Judgment in Germany v Council, C-399/12, EU:C:2014: As hardly needs mention, it was at this point in time that the ATS came under close scrutiny and received heavy criticism from some UN General Assembly members. See generally Beck 2004, and Beck in this volume. 61 Antarctic Treaty Consultative Meeting ATCM XXVIII CEP VIII, ATCM Final Report, p. 36, para It started with motions from two Members of Parliament in 1984, which eventually led to the adoption of two resolutions. See European Parliament Resolution on the economic significance of Antarctica and the Antarctic Ocean, Doc. A2-101/87, 19 October 1987, and European Parliament Resolution on the protection of the environment and wildlife in Antarctica, Doc. A2-57/87, both published in the Official Journal of the European Communities of 19 October 1987 (C 281/ ). By the end of 1990, the attention seems to have ebbed away. 9

10 The Union s internal organisational structure equally reflects this lack of Antarctic ambition. Within the European Commission, the Directorate-General for Maritime Affairs, 63 which concerns itself solely with CCAMLR, has the lead. The Directorate-General for Environment, which one could expect to determine the Union s positions for the other Antarctic fora, has no official dealing with Antarctic affairs. Equally, within the EEAS, which is structured according to geographical regions, there seems to be no official responsible for the Antarctic region. 64 At CCAMLR meetings, an official of the Union Delegation in Australia represents the EEAS CCAMLR and the EU s common fisheries policy Despite its general lack of Antarctic ambition, the Union (and its predecessor) has been a Contracting Party of CCAMLR from the outset, and an active participant in the CCAMLR Commission. Indeed, the European Commission participated in the Conference that would lead to this convention, thus the then European Economic Community can be considered one of the founding members of CCAMLR. 66 The legal basis for the Union s external competence with regard to fisheries has been longestablished. 67 Furthermore, the EU Treaties confirm both the EU s competence as to the conservation of marine biological resources under the common fisheries policy 68, and the exclusive nature of this competence, thus barring Member States from adopting rules in this respect. Nonetheless, for other fisheries-related matters, the EU shares a competence with its Member States. 69 Therefore, as the objectives of CCAMLR reach beyond mere conservation of marine biological resources, interested EU Member States can independently become Contracting Parties to CCAMLR. Moreover, since the French and British territorial claims in Antarctica and the sub-antarctic region are not governed by EU law, these Member States can request membership to CCAMLR on the basis of their claimed or recognised sovereignty over these territories and islands, and thus retain full competence, even with regard to the conservation of marine biological resources. On this basis, next to the European Commission, which represents the EU, seven EU Member States 70 are currently Contracting Parties to CCAMLR and Members of the CCAMLR Commission, which makes this a case of mixed representation. 71 Although mixed representation might be interesting from an EU point of view, as it can alleviate some internal tensions with regard to the division of competences, it often leads to confusion for third parties who encounter difficulties in determining which level to negotiate with on certain issues. 72 Now and then, confusion with regard to the Union s internal division of competences can even give rise to serious controversy. Such was the case when the European Commission notified to the CCAMLR Commission the intention of a Portuguese vessel to engage in exploratory fisheries in the CCAMLR area. As the then European 63 More specifically, the department in charge is department (B/1) dealing with International Affairs, Law of the Sea and Regional Fisheries Organisations, which falls under the Directorate for International Affairs and Markets. See 64 This can be inferred from the EEAS headquarters organisational chart, available at 65 See Commission for the Conservation of Antarctic Marine Living Resources 2014, See Council Decision 81/691/EEC on the conclusion of the Convention on the conservation of Antarctic marine living resources [1981] OJ L252/ See Joined Cases 3/76, 4/76 and 6/76, Cornelis Kramer and others [1976] ECR 1279, [30/33]. 68 TFEU, Art. 3(3). 69 TFEU, Art. 4(3). 70 The following EU Member States are Members of the CCAMLR Commission: Belgium, France, Germany, Poland, Spain, Sweden, and the United Kingdom. See 71 On mixed agreements in international environmental governance, see Delreux Haward 2012,

11 Community had an exclusive competence for fisheries, it argued that, although Portugal was not party to CCAMLR: vessels flying the flag of a Member State in all regional fisheries organisations, as well as in the UN Convention on the Law of the Sea (UNCLOS), are considered to be Community vessels, whether or not a specific provision to this effect is included in the respective Conventions [.] as a Contracting Party of CCAMLR, the European Community, and consequently all its Member States and all Community vessels, are bound by CCAMLR s conservation and control measures, irrespective of whether those Member States are Members of CCAMLR or not. 73 Consequently, the European Commission considered that it was not necessary for Portugal to join CCAMLR before engaging in exploratory fisheries, as the Portuguese vessel was already bound through EU law to abide by this convention. However, other Contracting Parties did not concur with these views, demanding Portugal become a party to the CCAMLR in its own right before engaging in fisheries activities. 74 Finally, although the notification was accepted, the Portuguese vessel refrained from engaging in exploratory fisheries in Antarctic waters. 75 More recently, the European Commission has challenged the standard formula of mixed representation in CCAMLR. On 23 November 2015, the European Commission has brought an action against the Council of the EU before the CJEU. 76 The action concerns the annulment of the decision to submit a reflection document for the creation of a marine protected area in the Weddell Sea to the CCAMLR Commission on behalf of the European Union and its Member States. The European Commission contends that this document should rather have been submitted on behalf of the European Union alone, on the basis of its exclusive competence in the matter of conservation of marine biological resources. Alternatively, it grounds the EU s exclusive competence in article 3(2) TFEU, and more specifically, on the phrase which grants the EU exclusive competence to conclude an international agreement in so far as its conclusion may affect common rules or alter their scope. At the time of writing, it is too early to speculate on the outcome of this case. Moreover, it is unclear whether this action by the European Commission reflects a broader strategy on the part of the Commission aimed at asserting the exclusive competence for the EU for all CCAMLR matters, or whether it should be interpreted as an exception to the rule the rule being the interpretation of CCAMLR as a mixed agreement, in which both the EU and its Member States are represented. If the former holds true and if this strategy is pursued successfully, this might imply important changes in the way the EU and its Member States are represented in the CCAMLR system. The EU could then possibly ensure the external representation itself (without the Member States) and could become an even more important actor within CCAMLR. Indeed, in stark contrast with its general lack of engagement in the ATS, the EU has already proven to be an active participant in the CCAMLR Commission. It has actively promoted the establishment of a representative system of Marine Protected Areas in recent years. 77 In the light of this objective, it has launched a joint initiative with Australia and France, in October 2013, calling for the establishment of an East Antarctic Representative System of Marine Protected Areas (EARMSPA). 78 The European Commission and its partners have continued 73 Commission for the Conservation of Antarctic Marine Living Resources 1999, [9.42] [9.43]. 74 Ibid. [9.44] [9.48]. 75 Haward 2012, Action brought on 23 November 2015 in Commission v Council, C-626/15, Official Journal of the European Union , C 59/5. 77 See the EU s statement at the 34th CCAMLR Commission: Commission for the Conservation of Antarctic Marine Living Resources 2015, [8.114]. 78 The joint statement is available at 11

12 to press this issue during later meetings of the CCAMLR Commission. 79 Although there now seems to be consensus with regard to the principle of establishing a representative system of Marine Protected Areas, including in East Antarctica, some CCAMLR Members, most notably Russia and to a lesser degree China, continue to stall the establishment of such areas by raising issues and concerns European research in Antarctica Finally, it is worthwhile to discuss briefly the EU s research policy regarding the Antarctic because of the central role of scientific research plays in the ATS. With regard to research, the Union s competences can best be described as parallel to that of its Member States. In accordance with article 4(3) TFEU, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs. As such, both the EU and the Member States can develop scientific research programmes in the same field, limited only by a joint obligation for mutual coordination of their research activities to ensure consistency. 81 The main objective of the Union s research policy is the: strengthening [of] its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties. 82 As the EU aims to take into account the latest scientific developments in its policy-making, the relevance of its research policy evidently stretches to its other fields of competence and policymaking. 83 Multiannual framework programmes, adopted by the European Parliament and the Council, form the backbone of the Union s research policy. 84 The implementation of these programmes is in the hands of the European Commission. In 2013, the Seventh Framework Programme (FP7) came to a close (although several projects from this programme have extended beyond this deadline), and the new funding programme, Horizon 2020, took off in Both FP7 and Horizon 2020 have funded or are funding research projects with an Antarctic dimension, information on those is found at the CORDIS website. 85 The Union s financial support has, inter alia, contributed to the leadership of the European ice-core community, for example through funding for the EPICA-project. 86 In addition, the Antarctic Polar View sea ice information service is largely made possible by EU funds. 87 The EU stepped up its efforts in 79 See, for example, the EU s closing statement at the 33th CCAMLR Commission: Commission for the Conservation of Antarctic Marine Living Resources 2014, [14.1]. 80 For the latest discussion on the EARSMPA initiative, see Commission for the Conservation of Antarctic Marine Living Resources 2015, [8.41] et seq. France vented its exasperation with the Russian resistance implicitly clear when it stated that All CCAMLR Members except one have a shared vision of our collective responsibility as enshrined in Article II of the Convention, that is, the conservation of the marine resources of the Southern Ocean (emphasis added). See Commission for the Conservation of Antarctic Marine Living Resources 2015, [8.115]. 81 TFEU, Art 181(1). 82 TFEU, Art See, e.g., Art TFEU, which stipulates that the Union shall take account of available scientific and technical data in developing its environmental policies. 84 TFEU, Art CORDIS stands for Community Research and Development Information Service, and it is the Commission s primary public repository and portal to disseminate information on all EU-funded research projects and their results in the broadest sense. See 86 European Commission 2015, United Kingdom

13 this area, furthermore, at the start of the International Polar Year. It published a report on what had already been done regarding polar research in their FP5 and FP6 and what would be done in FP7 during the International Polar Year. 88 Nevertheless, at present, there exists no explicit, coordinated Antarctic (or even polar) research policy present within these framework programmes. Attempts have been undertaken, however, to coordinate European polar research policies, both those policies from the EU and from its Member States. In this regard, two relatively recent and interconnected developments are worth noting. The first development relates to the (renewed) funding by the EU of the EU-PolarNet project under Horizon 2020 for the period of This project establishes a European Polar Consortium. Its main objective is exactly to coordinate European polar research, for example through the joint usage of research facilities, but also through the promotion and development of a more integrated and coordinated European polar research policy. 90 One of the main partners of this research project is the European Polar Board (EPB), a collective of European national polar research institutes. 91 Whereas the EPB was formerly a part of the European Science Foundation (ESF), it is currently in the process of establishing itself as a separate legal entity. This process constitutes the second relevant development, as the EPB s stated goal is the coordination of European polar research and the promotion of polar research projects with policy-makers and funding-providers. 92 The significance of these two developments, which could lead to the coordination of polar research at the European level, flows from the possible Europeanisation of scientific research originating from EU Member States. 93 With the term Europeanisation, we refer to the recognition or labelling of more research projects as European, instead of, for example, Swedish or Belgian. Indeed, the perception of more research as European could lead to greater political leverage for the EU to participate in ATS decision-making. This follows from science being the currency of the ATS 94 a status reflected in the requirement that to become a Consultative Party, States must conduct substantive scientific research. 95 Other Antarctic actors have confirmed that conducting scientific research is essential to ensure legitimate participation within the ATS. In 2014, for example, the Australian Academy of Science warned the Australian government against constant reductions in spending on Antarctic research as an internationally credible Antarctic scientific program was deemed essential to maintain our sovereign moral claims, and our leading role in the Antarctic Treaty System. 96 In addition, it has been argued that added political legitimacy for Antarctic decisionmaking might be the most important incentive for increased spending by several Asian states on Antarctic research. 97 Despite these recent developments, Antarctic research from European origin is still mainly sponsored and led by EU Member States and their national polar research departments and institutes. There is indeed still a long road to go towards the Europeanisation of Antarctic scientific research originating from the European continent. 88 Vangelsten 2007 and Cardinal This research project was already started under FP6. See The final report of their research under FP6 can be found at 90 See 91 Not limited to the Member States of the EU. 92 In this light, the EPB has written a report on the possible role of polar research in the Horizon 2020 research agenda. See EPB In this context, Hemmings ushered that an EU research station in Antarctica would be one of the more likely scenarios for the establishment of a truly international research station. See Hemmings Herr and Hall Antarctic Treaty, Art IX Australian Academy of Science Brady

14 5. Prospects for the European Union in the Antarctic: some reflections In June 2015, a Member of the European Parliament questioned European Commissioner Karmenu Vella on the future intentions of the EU within the ATS. 98 In addition to referring to the Council Decision on Association with Overseas Countries and Territories, 99 the Commissioner responded that the Commission and EU s current focus is to ensure an active membership in the CCAMLR Commission, yet, other avenues for participating in the Antarctic Treaty System, including a possible accession by the EU to the Antarctic Treaty, have not yet been explored. He added, the feasibility and merits of any such step would have to be assessed in the context of, inter alia, the EU s increasing focus on international ocean governance. 100 The Commissioner s reply reflects the current lack of ambition and interest on the part of the Union and the European Commission to further engage in the ATS. Indeed, despite being legally capable of more fully engaging in the ATS, the main barriers to further involvement seem to be political in nature. 101 Not only is Antarctica low on the list of political priorities for the EU, due to its geographical distance and the issue s limited visibility in global politics, but the EU Member States, both claimant and non-claimant states, currently engaged in the ATS are also equally reluctant to ascribe a more prominent role to the Union, fearing this might weaken their own position. In order to overcome these political barriers, the EU requires additional incentives to step up its engagement in the Antarctic. We consider three possible incentives for further Union engagement in the Antarctic. Firstly, as the EU follows the global tide of interest, an unexpected crisis or event reinstating Antarctica as one of the central points on the global agenda (think, for example, of a major environmental disaster questioning the efficacy of the Antarctic environmental protection system, or, the renewal of plans for mineral exploitation) will undoubtedly trigger renewed efforts from the EU to claim a greater role in the ATS. Secondly, under unchanged circumstances, the Union might still be incentivised to engage more closely in the ATS where this might lead to increased recognition of its role as a global leader in environmental governance. Indeed, as discussed above, the EU has aspired to global leadership in environmental governance. An increased role in the ATS might support its leadership claims. In a certain sense, this is reflected in the Commissioner s statement quoted above that further engagement in the ATS would have to be assessed in the context of, inter alia, the EU s increasing focus on international ocean governance. The EU s interest in this region is indeed mainly fed by its connection with global issues, such as climate change. Thirdly, incentives for closer engagement could come from the European polar research community. As described above, two recent developments might lead to more Europeanised polar research in the medium term, which could in turn lead to the Europeanisation of the polar research community. Subsequently, these researchers might consider the European policy level more appropriate for dealing with Antarctic matters and start pressuring the EU to engage more actively in the ATS. As Antarctic governance is largely in the hands of researchers, researchers can influence the process of determining the appropriate level for dealing with Antarctic policy-making. In this sense, the Europeanisation of Antarctic research might contribute to a further Europeanisation of Antarctic policy-making. 98 European Parliament Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territories with the European Union ( Overseas Association Decision ) [2013] OJ L344/ European Parliament See Wouters, Odermatt and Ramopoulos