Document originated:	26 February 1997
Original language:	French
Forwarded to the Council:	28 February 1997
Circulated by the Council in the original language:	5 March 1997
Circulated by the Council in English:	10 March 1997
Deposited in Parliament:	14 March 1997
Department:	Foreign and Commonwealth Office
Basis of consideration:	EM of 15 May 1997
Previous consideration:	None
Committee's assessment:	Legally and politically important
Committee's decision:	Cleared

Background

42.1  The United Nations Convention on the Law of the Sea provides a comprehensive framework with respect to the uses of the oceans. It was the first UN Convention to contain a so-called 'EEC clause', permitting the accession of international organisations to which Member States have transferred competence over the matters covered by the Convention. The implications of this were considered in 1988 by a previous Committee, which considered that it did not raise questions of legal or political importance[123].

42.2  The European Community signed the Convention itself on 7 December 1984, and the Agreement on the application of Part XI of the Convention (amending the deep seabed mining régime to take account of problems in the original text) on 28 July 1994. Both are already in force. However, the EC could not become a formal party to the Convention until a majority of Member States had deposited their instruments of ratification. This has now happened.

42.3  The Commission is therefore proposing that the Community should endorse the Convention and the Agreement by depositing its instrument of formal confirmation.

The proposed Council decision

42.4  In an Explanatory Memorandum dated 15 May 1997, the Minister of State at the Foreign and Commonwealth Office (Mr Henderson) notes that in its seventeen parts the Convention covers the following matters:

"Part I - Introduction (definitions)

Part II - Territorial Sea and Contiguous Zone (including right of innocent passage)

Part III - Straits Used for International Navigation

Part IV - Archipelagic States

Part V - Exclusive Economic Zone (including States' rights and duties, in particular in relation to fish)

Part VI - Continental Shelf

Part VII - High Seas

Part VIII - Régime of Islands

Part IX - Enclosed or Semi-Enclosed Seas

Part X - Right of Access of Land-Locked States To and From the Sea and Freedom of Transit

Part XI - The Area (i.e. the International Seabed Area)

Part XII - Protection and preservation of the Marine Environment

Part XIII - Marine Scientific Research

Part XIV - Development and Transfer of Marine Technology

Part XV - Settlement of Disputes

Part XVI - General Provisions

Part XVII - Final Provisions"

42.5  The Minister further explains that:

"The EC has extensive competence in respect of some matters covered by the Convention and Agreement and a more limited competence in others. The extent of the EC's competence is described in the draft Declaration of competence which appears at Annex 3 to the proposed Decision.

"Ten of the Community's fifteen Member States are now parties to the Convention and the Agreement and the Community may thus become a party pursuant to Annex IX of the Convention. The UK has not yet acceded to the Convention and has signed but not yet ratified the Agreement. Conclusion by the European Community of the Convention and the Agreement is independent of conclusion by those Member States which are not yet party."

The Government's view

42.6  On the question of subsidiarity, the Minister says:

"The Convention covers matters for which the Community has exclusive competence, as well as matters for which Member States have exclusive competence or for which competence is shared between the Community and Member States. It is therefore appropriate and consistent with the principle of subsidiarity as defined in Article 3b of the EC Treaty for the Community to become party to the Convention and the Agreement. The Community's participation does not affect the existing distribution of competencies between Member States and the Community in those areas where competence is shared."

42.7  On the content of the proposal, the Minister says:

"Since the Convention largely reflects existing international law in fields where the EC has competence, it is not anticipated that EC conclusion will lead to significant EC policy changes. Conclusion by the EC of the Convention and of the Agreement on the Application of Part XI is not expected to have direct implications for UK policy in areas of exclusive Member State competence. The Government will shortly be considering UK accession to the Convention."

Conclusion

42.8  The matters covered by this proposal are important both for their substance and for their legal implications. But the extremely lengthy process of agreeing the Convention is almost at an end, and a debate at this stage would serve no useful purpose. We therefore clear the document.