Dr. Ronan Long
National University of Ireland Galway
The European Union
and Law of the Sea Dispute Settlement
Ronán Long
School of Law
National University of Ireland Galway.
BIICL, Belfast, 22-23 November 2012
BIICL
22 November 2012
Overview
1.
History of the Convention
2.
Status of Convention
3.
EU approach to dispute settlement
4.
Court of Justice European Union
BIICL
22 November 2012
History (1)
9 EEC Member States participated at
UNCLOS III (Greece 1981)
6 Member States abstained in the vote
Law of the sea interests of the
Member States were diverse
Transfer of competence to EEC
source: UN Archive
BIICL
22 November 2012
History (2)
Arts 305-307 & Annex IX provides for
participation by “International Organisations”
EEC signed Convention in 1994 & lodged
instrument of formal confirmation in 1998
(Declaration of Competence)
Fish Stocks Agreement signed in 1995…FC
in 2003
source: UN Archive
BIICL
22 November 2012
Status of Convention within
European Legal Order
“Integral part” of EU law
Ranking as a source of EU law
–
Below EU Treaties and above secondary
legislation
Informs EU law:
–
–
multilateral and bilateral treaties concluded
by the EU
secondary legislation
source: guardian.co.uk
BIICL
22 November 2012
Dispute Settlement
Part XV… application and interpretation
Means of their own choice / general, bilateral or
regional agreement or otherwise [Arts 280 & 282]
By negotiation [s.1 of Part XV]
Compulsory procedures entailing binding decision
[s.2 of Part XV ]
Source: www.europa.eu
Choice of Procedure
Article 287
International
Tribunal for the Law of the Sea
Annex VI
International Court of Justice
Compulsory Procedures
Entailing
Binding Decisions
Arbitral Tribunal
Annex VII
Special Arbitral Tribunal
Annex VIII
BIICL
22 November 2012
Article 7 of Annex IX
Some features
EU has the freedom to choose the means for the settlement of disputes in
accordance with the general scheme of Article 287
Allows for the application of Part XV, mutatis mutandis, to any dispute
between the EU and State Parties to the Convention, [apart from State
Parties that are also Member States of the EU].
In instances where the EU and one and more of its Member States are
joint parties to a dispute or are parties in the same interest, the EU is
deemed to have accepted the same procedures as the Member State.
Following on from this, where a Member State has chosen the
International Court of Justice, arbitration in accordance with Annex VII is
the residual means for dispute settlement, unless the parties to the
dispute agree otherwise.
BIICL
22 November 2012
Choice of procedure [Art 287]:
practice of the Member States (Nov 2011)
18 Member States of the EU have deposited declarations with Sec-Gen UN
Some of the MS had not deposited: Ireland, Malta, Cyprus and Bulgaria
ITLOS: 13 Member States first choice (or equal status to first choice)
ICJ: Denmark, the Netherlands, and the UK and N. Ire
Portugal has listed all four bodies without indicating any particular preference
Slovenia selected Annex VII arbitration
7 Member States have made declarations on limitations and exceptions
pursuant to Art 298
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22 November 2012
Ireland
Declaration in 2011 under Article 36(2) of the Statute International Court
of Justice accepting the compulsory jurisdiction of the International Court
of Justice in relation to disputes with any other State accepting the same
obligation, with the exception of any legal dispute with the United
Kingdom of Great Britain and Northern Ireland in regard to Northern
Ireland
Procedure that entails a binding decision in accordance with Article 282
of the Convention
Ireland has a dispute with any other State that has also accepted
the optional clause of the ICJ, then the jurisdiction of the Court
would appear to prevail pursuant to Article 282 over the other
procedures set down in Art 287
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22 November 2012
EC/EU Negotiated Settlement
Dispute with Canada in 1995
–
Spanish vessel Estai
Case concerning the Conservation and
Sustainable Exploitation of Swordfish
Stocks in the South-Eastern Pacific Ocean
(Chile/European Community). ITLOS No 7
Source: canadaworld.ca
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22 November 2012
Compulsory Settlement
Mox Plant case [provisional measures]
–
Ireland and the United Kingdom had not
accepted the same procedure for the settlement
of disputes in accordance with Article 287 of the
Convention and were therefore deemed to have
accepted arbitration in accordance with Annex
VII to the Convention
Annex VII proceedings suspended to facilitate
clarification of competence under EC Treaty
BIICL
22 November 2012
Case C-459/03, Commission v Ireland (Mox Plant)
[2006] ECR I-4635
Ireland breached duty of sincere cooperation under
the European Treaties by initiating the disputesettlement procedure under the Convention on
matters fallings within EC shared competence and
that were regulated by EC measures to a large
extent
Convention provides for binding settlement under
general, regional or bilateral agreements or
otherwise [Art 282]
Clarified exclusive jurisdiction of the Court of
Justice vís-a-vís other competent courts and
tribunals under the Convention
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22 November 2012
Do provisions in the Convention have
direct effect in EU law?
Case C-213/03 Étang de Berre [2004] ECR I-9325
–
Protocol for the Protection of the Mediterranean Sea against
Pollution from land-based Sources
Case C-308/06 The Queen on the application of Intertanko and
Others v Secretary of State for Transport, [2008] ECR I-4057,
–
Rights under the 1982 Convention are not “conferred on the
individuals linked to those ships, such as their owners, because
a ship’s international legal status is dependent on the flag State
and not on the fact that it belongs to certain natural or legal
persons”. [para 59.]
BIICL
22 November 2012
Convention informs EU law
Case C-347/10 A. Salemink v Raad van bestuur
17 January 2012
–
residency criterion in the Dutch social
security legislation for offshore workers
was contrary to the principle of freedom
of movement of workers
–
work carried out on an offshore
installation on the continental shelf is to
be regarded as work carried out in the
territory of that State
source: nationalgeogrphic.nl
BIICL
22 November 2012
Enforcement Proceedings
Treaty on the Functioning of the EU
1.
Commission v Member State
2.
Member State v Member State
3.
Failure to comply with judgment of the Court of Justice
–
Case C-121/07 Commission v France [2008] ECR I-9159.
€20 million penalty and €56 million for every six months noncompliant with previous judgment of Court in relation to fisheries
conservation measures
BIICL
22 November 2012
Tentative Conclusions
1.
Convention integral part of European legal order
2.
Disputes between EU and third countries:
–
–
3.
Negotiated settlement
ITLOS constructive and important role under Part
XV
European Commission and Court of Justice
have important roles to play in dispute
settlement and enforcement at an internal level
within the EU
BIICL
22 November 2012
Thank You!