SPEECH/05/475 Dr. Joe BORG Member of the European Commission Responsible for Fisheries and Maritime Affairs Oceans and the Law of the Sea: Towards new horizons Address at the Conference of the International Tribunal for the Law of the Sea Hamburg, 02 September 2005
President of the Tribunal, Distinguished guests, When Arvid Pardo, on 1 November 1967, suggested to the UN General Assembly that a regime of common heritage replace the traditional regime of the high seas, he could not have imagined the historic importance his proposal would grow to assume. It was the start of a long process which led to the United Nations Convention on the Law of the Sea (UNCLOS), a Convention which as you well know was adopted finally in December 1982, and only entered into force in 1994. Despite its long genesis and the delays in its entry into force, or perhaps because of them, the Law of the Sea Convention clearly has become a success story for the United Nations and the international community at large. On the first day on which it was opened for signature, 119 countries signed the convention, which was a record at the time. With today s 148 ratifications, this constitution of the oceans may be deemed as practically universal and is among the major achievements of global governance based on the rule of law. The European Union has, overall, been a supporter of UNCLOS, which by now is already a part of the Union s legislative architecture. The European Community deposited its instrument of ratification of UNCLOS on 1 April 1998, and since its entry into force one month later, has been an active and interested party to the Convention. Over and above the EC as a Community, 24 of the current 25 EU Member States are also contracting parties of UNCLOS. These memberships prompted a declaration clarifying the division of competences between the European Community and its Member States as to the rights and obligations contained in UNCLOS. As Judge Tulio Treves of this Tribunal recalled at a Symposium we held just recently in Brussels on the enforcement of fisheries legislation, this declaration of competences contains a number of dynamic elements. Following the major reform of the CFP in 2002, it may also be an opportune moment to consider updating the list of legislation attached to the declaration. In the context of the UN System and within the subject of oceans and law of the sea, the EU has also been an active participant in the Informal Consultative Process (ICP) on Oceans and the Law of the Sea at the United Nations. We have followed this year s session closely and have taken particular note of its agenda comprising issues such as the conservation and sustainability of marine biodiversity and the contribution of fisheries to sustainable development. I am also pleased to say, that the Union has been a strong supporter of this forum and we are fully committed to a prolongation of the ICP mandate. We have also made it clear that we attach great importance to resolving the discrepancy that currently exists between the European Community s observer status and its competences whether exclusive or mixed with respect to many issues that are being discussed in the ICP. As a contracting party in its own right of both UNCLOS and of the UN Fish Stock Agreement, the European Community has accepted legal obligations with respect to oceans and the law of the sea that are particularly relevant to the ICP agenda. We hope, therefore, that the UN will grant the EU the status that fully reflects its rights and obligations under international law within the ICP. 2
Ladies and Gentlemen, The peaceful settlement of disputes is an essential element of good governance of the oceans. The importance of the achievement of UNCLOS in instituting a specialized, permanent Tribunal on the Law of the Seas (ITLOS) cannot be underestimated. As you are probably aware, although the Community has contributed to the Budget of the International Tribunal for the Law of the Sea since 1998, it initially had a wait and see attitude towards this institution. Indeed in view of Article 287 of the Convention, the European Commission had proposed to the EU Council of Ministers in 1999 to take a decision not to express a preference for any of the three dispute settlement procedures provided for in UNCLOS and which are open to the Community, namely ITLOS, an arbitral tribunal or a special arbitral tribunal. The Council of Ministers, however, never formally decided on the line proposed by the Commission, and the Commission in October 2004 decided to withdraw that proposal together with others that are no longer relevant. Notwithstanding the 1999 proposal, the EU was positively disposed towards ITLOS. Indeed, already in the year 2000 in the context of a fisheries dispute between the EU and Chile the latter requested ITLOS to constitute an arbitral tribunal under Article 287 of UNCLOS. The European Community, represented by the European Commission, agreed that the case should be heard by a special Chamber of ITLOS. This case concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean revolved around questions of compliance with UNCLOS and whether the Galapagos Agreement which Chile has negotiated with three other southern American coastal states is in conformity with the Law of the Sea. As you are well aware, this case raises a number of difficult jurisdictional issues, including with respect to the relationship between UNCLOS and the WTO. This was also the case when the EC initiated proceedings concerning Chilean restrictions on transhipments through its ports. I have been given to understand, that proceedings in both cases have remained suspended to date. The European Commission is thankful for the cooperative attitude that the Tribunal took in the handling of the dispute, namely by first guiding the parties to an agreement on the establishment of a special chamber for hearing the dispute, and then by suspending the time-limits for the proceedings in this dispute, thus allowing the parties to accommodate each others concerns, at least for the time being. Even if the Tribunal has not as yet decided on the merits of the actual dispute, the experience so far shows that proceedings have already been an important contribution to the peaceful settlement of the dispute. This demonstrates the Tribunal s potential role as a facilitator for peaceful settlements well beyond its intrinsic authority to rule on the merits. The European Commission also has a major interest in the case concerning the Mox Nuclear Plant in Sellafield. In this case, Ireland brought an application against the UK and this Tribunal ruled, by Order of 3 December 2001, on a request for provisional measures, the substance of the case having been referred to arbitration under Annex VII of the Convention. The arbitral tribunal felt that there were significant questions of EC law, and suspended its proceedings in order to give the Parties the possibility to resolve their dispute under EC law. Interestingly, the arbitral Tribunal ordered that the European Commission be provided a copy of its order. 3
The Commission in fact brought a procedure against Ireland on 30 October 2003 before the European Court of Justice. In that procedure, the Commission submitted that Ireland instituted the proceedings against the United Kingdom without taking due account of the fact that the European Community is a party to UNCLOS and that through its act of ratification the relevant provisions of UNCLOS have been incorporated into Community law. In those circumstances, by submitting the dispute to a Tribunal other than the European Court of Justice, Ireland has violated the exclusive jurisdiction of the ECJ for disputes between Member States concerning the interpretation of Community law. This case raises a fundamental issue of Community law, on which the Commission seeks a clear judgement by the Court of Justice. The action by the Commission is guided by its duty, as established in the European Treaties, to secure and defend the integrity of the Union s legal order. In no way does this action reflect a lesser perception of the authority of ITLOS. On the contrary, the case reflects the great significance of UNCLOS as an integral part of the EC s regulatory framework on maritime affairs. This case also finds a close parallel in the recent judgment of the European Court of Justice in the Etang de Berre case, where the Court decided that a provision contained in an international convention for the protection of the maritime environment in the Mediterranean has direct effect on the Community legal order. In addition, in 2003, the EU Presidency emphasised in the UN the importance of judicial mechanisms in the prevention and resolution of legal disputes, stating that In our view the early and more frequent resort to these mechanisms and, in particular to the International Court of Justice and the International Tribunal of Law of the Sea, would greatly contribute to the maintenance of international peace and security and the promotion of the primacy of international law in international relations. There may have been some misjudgements in the past on the economic importance of the oceans, for example in relation to the exploitation of the resources of the seabed. Yet today, the overall assessment remains however, that politically, economically and environmentally, the importance of the oceans, and thus UNCLOS, is on the rise and thus needs to be given its full due. According to one recent estimate, the economic value of the oceans amounts to a total of 4,363 billion euro for the years 2005 2009, not including the value of the ecological contribution by the oceans to mankind. Ladies and Gentlemen, The recent enlargement of the European Union has not only strengthened the EU politically and economically. It has also increased the length of the EU coastline and the total area of water under EU jurisdiction. The tonnage of the EU-controlled and registered, merchant shipping fleet is now also the biggest in the world. It should not be a surprise, therefore, that this enlargement has helped us to become even more conscious of the maritime dimension of Europe and the great potential that oceans hold for us. It is against this background that the European Commission is now preparing a Green Paper on an all embracing Maritime Policy, which is to be published in the first semester of 2006. This Green Paper will be the basis for a broad consultation of interested parties, a number of whom have already submitted their contributions. 4
By this Green Paper, the EU is seeking to address the economic, environmental, social, as well as governance challenges relating to the oceans and the seas, in a holistic manner. The objective is to set out options for a maritime policy that will maximise the benefits Europe can draw from ocean and sea related activities, bearing both the Lisbon strategy of employment and growth, and questions of sustainability, in mind. Within this comprehensive approach to the oceans and seas, an important theme of the Green Paper will be the protection of the marine environment, as an essential component for the sustainable use of the oceans and seas, both in relation to EU waters and internationally. For this reason, the work of the European Commission on a Thematic Strategy on the Protection and Conservation of the Marine Environment will constitute one of the major building blocks of the Green Paper. The Green Paper will also address options to make maritime professions more attractive and to strengthen education and training for these professions, given that, in certain sectors of maritime activities, the demand for qualified personnel cannot be satisfied. Leadership in scientific research and development relating to both the natural conditions of the oceans and seas as well as technologies to be used in relation to them, is crucial to strengthen the knowledge base of Europe and its competitiveness. Building on existing policies of the Union, the Green Paper will explore options for the future. We are conscious of the fact that Europe s relation with the oceans and seas has a number of very particular characteristics. One example is the strength of the European fleet and its global importance as a backbone for international trade. Another example is the major variation of hydrological, biological, geological, political and legal realities in the marine regions surrounding Europe, which must be taken into account in the formulation of a future maritime policy. For example, the Baltic Sea is now almost entirely an EEZ of EU Member States with the exception of the areas falling under the jurisdiction of Russia. As a result of this, the Council of Ministers has decided that the EU should withdraw from the International Baltic Sea Fisheries Commission and turn to regulating fisheries either autonomously or in bilateral agreement with Russia. The Community will seek to build on IBSFC s efforts in ensuring the efficient governance of the Baltic Sea waters now under our jurisdiction. But let me also note that the dissolution of an international organisation these days a rare event is itself a contribution to good governance, if it is replaced by more efficient structures. On the other hand, in the Mediterranean, EU Member States have not declared EEZs and the EU works with a large number of third countries. Given the different realities of the littorals of these two seas, it is only natural that the approach in these two situations must be different. An added, significant dimension to relations within the Mediterranean, has been the recent declarations on extensions of Fisheries Protection Zones. The unilateral declaration of an FPZ by Libya, and the preparations of others like Tunisia and Malta who have so far enacted the enabling legislation, point to the need to establish more efficient means of consultation and co-ordination in the establishment of such zones. In the absence of such consultation, the unilateral extension of FPZs may have unforeseen impacts on the fishing patterns of other States and could jeopardize other states traditional practices. 5
In order to mitigate these effects, in cases where such zones are aimed purely at enhancing the management of fisheries resources, a mechanism of prior consultation could be envisaged to ensure that the extension of such zones is not a source of tension or conflict. The Commission has also intensified its dialogue with relevant bodies within the United Nations and other international organisations, as well as with third countries, in order to identify best practices relating to integrated ocean policies. These contacts are instrumental in discovering new possibilities to strengthen international cooperation and good governance of the oceans. In the Green Paper, we hope not only to look at the European scenario but also at the contributions the EU can make towards strengthening the good governance of the oceans globally. Some of the issues to be raised will necessarily relate to law of the sea considerations and some may be of interest to this Tribunal. Hence, while the economic, environmental and demographic pressures on the oceans and their resources are increasing, also the number of multilateral and bilateral agreements relating to ocean issues such as fisheries, environmental protection, or shipping is ever increasing; confirming the trend towards Treaty congestion as already identified in the 1998 report of the Independent World Commission on Oceans, entitled The Oceans our Future. Many of these Treaties, however, either do not contain rules on a binding settlement of disputes, thus lacking enforcement, or they install special dispute settlement mechanisms, thus increasing fragmentation rather than coherence. In this situation, we believe it is necessary that coherence and the rule of law are strengthened through an increased effort on behalf of the parties to UNCLOS to make good use of the existing institutions available for dispute settlement. We understand that parties may wish to bring cases before the International Court of Justice (ICJ) in areas relating to the Law of the Sea in which the ICJ itself has set a precedent. But we also believe that for cases which cannot be brought before the ICJ or for cases where ITLOS has a specific competence, that ITLOS should be the institution of choice. This will necessarily be so for a number of the Community s cases given that the EC is not a state and as such may not be a party before the International Court of Justice in cases relating to the Law of the Sea. On the other hand, the EC can be a party before ITLOS, a fact which renders ITLOS the preferred choice for the European Community when it comes to disputes relating to the Law of the Sea. In order to strengthen this even further, the EU, where appropriate, could also offer to include a provision in the agreements relating to the Law of the Sea which it concludes with third countries binding the parties to refer the settlement of any disputes to ITLOS. This will not necessarily significantly increase the number of cases before ITLOS. Rules on binding dispute settlement actually increase the incentive of parties to find mutual agreeable solutions a fact which is in itself positive. Yet nevertheless, we do believe that taking a step such as that outlined above, could be an important contribution by the European Union to the strengthening of the rule of law in international relations. 6
Allow me, by way of conclusion, to come back to the fact that the EU comprises 24 Member States which may themselves be party to disputes that come before ITLOS, and that such cases could concern rules emanating from EU law or indeed concern the Community as party to UNCLOS. Given this, I would like to suggest that an exchange of letters between ITLOS and the European Commission on the swapping of information could be a useful step towards added coherence between EU law and the United Nations Convention of the Law of the Sea. The Green Paper on a Maritime Policy for Europe will provide ample opportunity to discuss these and any other proposals which may be brought forward by stakeholders or the academic community. In this regard, as the Chairman of the Steering Group of European Commissioners discussing the Green Paper, I am looking forward to any contributions you may have in the months ahead and of course, to having a frank and open discussion here with you this evening. Thank you. 7